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Not a Shield Nor a Sword:

Daddy Went to Prison

In the case of In re: C.M., Claire is the little girl whose daddy went to prison. She was born in 2009 with drugs in her system but her dad wasn’t there. He was incarcerated after being convicted of drug charges eight months earlier. By the time dad was released from prison, Claire was three years old. Dad filed motions for visitation, and later for increased visitation, which he eventually won. But by the time the case reached a conclusion, the judge awarded guardianship of his young daughter to her foster parents. Dad appealed and on May 3, 2016, the NC Court of Appeals ruled in his favor and reversed the order awarding guardianship to the foster parents. The lower court now has to have a new trial taking into account things it failed to do the first time.

Constitutional Rights & Protected Status

Parents have a constitutionally protected legal status as parents. They have the legal right to the care and custody of their children. But it isn’t just about the rights of parents. It is a two way street. The law gives parents their special legal status with the expectation they will fulfill their responsibilities and duties as parents. Before awarding custody or guardianship of a child to a non-parent, the court must first rule the parent did something to lose his or her rights. Otherwise, the parent retains the special legal status as a parent. A court must make very specific rulings about what, exactly, that parent did to lose that status. 

What the Judge Did

In the C.M. case, the trial judge ruled that dad “abrogated” his rights as a parent because he wasn’t there when Claire was born. Worse, his actions related to illegal drugs led to his arrest and incarceration were voluntary. The judge declared such a thing “cannot be excused.” While many people might think this makes perfect sense, it is not legally valid. The Court of Appeals reversed the guardianship order because the mere fact that he was in prison for three years is not enough to automatically rule he should be stripped of his legal status as a parent. Court is not a gum ball machine. A judge must use judgment and discretion to rule on whether he has lived up to his expected parental duties. 

What Else Matters?

The question to be addressed is what did Dad do or fail to do that would cause him to lose his protected status as a parent. What is the relationship like between Claire and her dad? What do they do together when he has visitation? How is the therapy progressing? Does she have her own bedroom? Does he call her regularly? More to the point, a social worker even testified there were no current concerns about the stability of dad’s home.   

If Dad loses his protected legal status when the new trial takes place, the judge will examine what is in the child’s best interest, regardless of whether Dad is the parent. It is possible he could lose custody but still have visitation rights. If he keeps his legal status, the court must presume Dad has custody of the child. In that event, the court can put certain restrictions on his behavior, or require him to do certain things, as it does in any other custody case. 

Past Incarceration Isn’t a Shield or a Sword  

Ultimately, the Court of Appeals tried to clarify what it means to be an incarcerated (or formerly incarcerated) parent. The parent can’t use the fact that he was incarcerated as a sword, actively wielding it in an effort to get special consideration as a “victim” to make up for his inability to parent from a cell. Nor can he use it as a shield to hide behind as an excuse for the things he has or has not done as a parent. A court must judge him as a parent, not just as a former inmate.

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of June 2016. www.AmyEdwardsFamilyLaw.com  © 2016.  

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