skip to content

Reentry Resource Center - New York

Serving People from Arrest to Reintegration

Parental Rights

Parental Rights

1. Can I lose my parental rights if I am convicted of a crime?

  • Only in the case of serious criminal convictions - like murder and manslaughter - can the state file a petition to terminate your parental rights based on a conviction alone.

2. Can I lose my parental rights if I am sentenced to prison or a residential treatment program?

  • Not necessarily.
  • Federal law says that if your child is in foster care for fifteen of the last twenty-two months (which could happen if you are incarcerated), the agency can file a petition to terminate your rights. Therefore, you should make sure to stay in contact with your child (and the agency) and work towards a permanent arrangement for him/her.
  • If you are a father: contact a lawyer immediately to learn about your rights and responsibilities, especially regarding your financial obligations toward your child and your right to visit with your child during your sentence.
  • New York allows foster care agencies to delay filing for termination if a parent is in prison or residential drug treatment. It also requires agencies to inform incarcerated parents of their rights and responsibilities and to provide referrals to services and visiting programs.
  • If you are serving a jail or prison sentence of one year or longer and your child is in foster care you must:
    • Consult a lawyer immediately about steps you can take to try to preserve your parental rights. You can call Legal Information for Families Today (LIFT) hotline at (212) 343-1122 for free advice and referrals to free legal services.
    • Begin making efforts to stay in contact with your child right away, and keep copies of papers documenting every contact and attempted contact that you make with your child or with your child's caseworker.
  • For more information, download these excellent fact sheets created by the Women in Prison Project at the Correctional Association of NY.

3. Can I lose custody of my child simply by being in jail or prison?

  • You can't lose custody of your children just for being in jail or prison, but if you don't visit or communicate with your kids for six consecutive months, your parental rights can be permanently terminated on grounds of abandonment.
  • If your children are in foster care:
    Maintain contact with the agency that has placed your children in foster care.

4. If I can lose my parental rights when my child is in foster care for a certain period of time, what counts as time in foster care?

  • The only time that "counts" as foster care is time that your child spends in the care of a state agency.
  • If you arrange to place your child with a responsible adult, that does not count as foster care. You will not have to go to court to regain custody of your child, unless the other adult refuses to give your child back. The Department of Correctional Services should have "Temporary Acknowledgement of Custody" forms you can use.
  • Here's the process for arranging to place your child with a responsible adult:
    • Describe the custody arrangement in writing; and
    • Have both the parent and caretaker agree to the arrangement with their notarized signatures.
  • A Voluntary Placement Agreement, however, does count as foster care. A Voluntary Placement Agreement gives custody of your child to the local child welfare office or Department of Social Services.


1. How do I visit my kids if the other parent has an order of protection against me?

  • Ask your defense attorney to get the criminal court to change it to a "limited" order of protection or to make it "subject to family court modification." If an order of protection is "subject to family court modification," you can go into family court yourself and file for visitation rights in family court.

2. What rights do I have if my children are in foster care?

  • You have the right to visit with your child, even if you are incarcerated and even if your child is in foster care.
  • If you are incarcerated and your family lives in New York City, you can visit your child through the CHIPP program (Children of Incarcerated Parent Program). This is a program that facilitates parent-child visits, sibling visits, and case conferences with an incarcerated parent or incarcerated young person. CHIPP offers weekly transportation and support services for child-parent and sibling visits; case conferences at Rikers Island; transportation and support services for parents in State and Federal correctional facilities within the tri-state area; and a collect call line for incarcerated parents.
    • The CHIPP program has a collect call line for incarcerated parents. If you would like to participate, call: 0-1-212-341-3322.
    • To learn more about the CHIPP program, call 212-341-4883.
  • You have the right to know the reason your child is placed in foster care, and to identify a family member or other people who can be resources for your children while you are incarcerated.
  • You have a right to have an attorney represent you in Family Court.
  • You have a right to know the name of your child's caseworker, and to be in contact with him/her.
  • You have a right to receive help in taking steps to be reunified with your child.
  • You have a right to participate in planning for your child's future
  • You have a right to provide input on the "permanency plan".
  • You have a right to receive a copy of the permanency plan.

Adoption & Foster Care

1. Can I still become a foster or adoptive parent if I have been convicted of a crime?

  • It depends.
  • You will be denied if you have a felony conviction for
    • Child abuse or neglect;
    • Spousal abuse;
    • A crime against a child, including child pornography;
    • A crime involving violence, including rape, sexual assault, or homicide, other than physical assault; or
    • Within the past five years, a felony for drugs or physical assault.
  • The federal Adam Walsh Child Protection Act mandates that if you have a felony conviction that falls into any of the categories above you will be automatically disqualified from being a foster or adoptive parent.
  • This section of the law took effect October 1, 2008, so if you were already a foster or adoptive parent before then, your children will not be removed from you based solely on past convictions.
  • You can view the Policy Directive from the Office of Children & Family Services on Reentry Net/NY (
  • You might be denied if:
    • You have been charged with or convicted of any crime; or
    • Someone in your house over the age of 18 has been charged with or convicted of any crime.

* This handout is an excerpt from The Consequences of Criminal Charges: A People's Guide, published by The Bronx Defenders. It is for informational purposes only and is NOT a substitute for legal advice. It is up to date as of November 2013.

Pro Bono and legal aid attorney resources - Pro Bono Net