Video Transcribed: You screwed up and now you’re getting locked up. My name is Brian L. Jackson I am a Men’s Divorce Attorney Tulsa with Dads. Law, And guys, I want to talk to you today about protecting your rights if you know you’re going to prison. If are facing a stint in the state penitentiary because of some felony you’ve got convicted for, this can have a seriously detrimental effect on your relationship with your child in a couple of ways.
But one of the biggest threats, if you get locked up is having your parental rights terminated in what’s called an adoption without consent hearing. Adoption without consent basically can occur on two grounds. The first is if you willfully fail to pay child support according to a child support order or according to your ability, or if you willfully fail to maintain a meaningful relationship with your child.
Now obviously if you’re looking at sitting in the Department of Corrections for a while, maintaining a relationship and paying child support can be quite difficult for obvious reasons.
I mean if you’re in prison you’re not making money and your Liberty is restricted, which is going to make it harder to stay in contact with your child. So, how can you prevent your ex-wife or ex-girlfriend from bringing a new man into the situation and having him adopt your child while you’re in state custody?
Well, there are a couple of steps you can take. And in extreme cases, you may need to retain counsel to protect and vindicate your rights. The first thing is and I’ve had judges say this to me and my clients in the past and this is something to keep in mind, stay in touch however you can. Be it letters, be it telephone calls, be it Christmas cards.
I mean even if it’s some little $2 card every now and then, that $2 card can mean the difference between you getting to stay in your child’s life or having your rights terminated. On the child support side, I would pause is it to you that if you know you cannot pay because you’re locked up, get something filed in either District Court or DHS admin court to have it declared that you have no ability to pay.
The sooner you get that done, the better it is for you because that will protect you from getting your rights terminated for not paying child support. I recently had a judge who ruled in my favor on that specific issue because the client’s child support had just been adjusted to zero by DHS because they made a finding that he had no ability to pay.
Now, the reason why that particular argument went in favor of my client was that there is a case that’s directly on point dealing with this called in the adoption of VAJ, those are the initials. Where the court, in that case, found that if an inmate has no income, they have no ability to pay, it’s not a willful failure to pay.
And the keyword there is willfulness. It has to be something you voluntarily failed to do. So, if being imprisoned means you have no ability to pay, then in that event you are not willfully failing to pay and shouldn’t be subject to termination for that reason.
However, I would advise you definitely want that finding because otherwise you’re looking at having to litigate it and like any other litigated matter, it’s a potential problem. Now the other things you should be looking at doing in that situation if your ex isn’t letting you talk to your child if you’re finding the cards and little gifts and whatever else you’re trying to send to your child are being marked return to sender or whatever, one creates a paper trail. As much as you’re able to mail them in a manner that creates a paper trail, whether it’s certified or whether it’s a private courier.
And I do understand that your ability in prison is limited, but to the extent possible create a paper trail because if you ever have to go to court later, that’s how you prove I am making the efforts. She’s thwarting me. The other thing I would very seriously suggest is if you are in that situation where you are being denied access to your child and this is true whether you’re in prison or not, you need to take appropriate legal action through an attorney as soon as you possibly can.
Don’t let a lot of time go by. You do not maintain a good relationship with your child for 12 out of 14 months before the filing of one of these petitions for adoption, you could be in deep trouble. You can have a problem. So, don’t sit on your hands and wait for your release state to take care of that, deal with it immediately. Get a lawyer if you’re able to. Even if they end up not having a lot of options for you, at least you can say you talked to a lawyer.
You got advice. You tried, because the more you do to push back against that, the better off you are. And if you’re facing this situation, if you know you’re going to prison, I recommend acting proactively. Get ahold of us at dads.law, where fathers are not disposable and we’ll help you out.