A Parent In Prison
Fam. Ct. Act § 451 — incarceration is not voluntary unemployment
Incarceration is not voluntary unemployment. The court may modify an order of child support on a showing of a substantial change in circumstances. Incarceration is not considered voluntary unemployment, and it is not a bar to finding a substantial change in circumstances.
- Unless the parties opted out in a valid agreement, the court may also modify an order where three years have passed since it was entered, last modified or adjusted, or where either party's gross income has changed by fifteen percent or more.
- A reduction in income is a ground only if it was involuntary and the party has made diligent attempts to find work suited to the party's education, ability and experience.
- A modification does not reduce or annul child support arrears that built up before the application was made.
- A proceeding to modify starts with a petition alleging facts that meet one of these grounds.
A child in foster care. In the section on the guardianship and custody of children, under which a petition to terminate parental rights is brought, a parent includes an incarcerated parent unless the section says otherwise. Where a child has been in foster care for fifteen of the most recent twenty two months, the agency files a petition to terminate parental rights unless an exception applies. One exception is that the parent is incarcerated, or prior incarceration is a significant factor in why the child has been in foster care that long, provided the parent maintains a meaningful role in the child's life and the agency has not documented a reason it would otherwise be appropriate to file.
Permanent neglect and an incarcerated parent. In deciding whether a child is permanently neglected, the court considers the special circumstances of an incarcerated parent. The agency's diligent efforts include suitable arrangements with the correctional facility for the parent to visit the child there, if visiting is in the child's best interests, including transporting the child, and information on the parent's legal rights and obligations and on services available, including family visiting services. Where no visiting has been arranged because it is not in the child's best interest, no permanent neglect proceeding is started on the basis of the lack of visits.
The other side of it. Evidence of the agency's diligent efforts is not required where an incarcerated parent has failed on more than one occasion while incarcerated to cooperate with the agency's efforts to help the parent plan for the child's future, or to plan and arrange visits. In keeping the agency told of the parent's location, the court may consider the particular delays or barriers an incarcerated parent may experience.
Custody and visitation between parents, support orders made in a divorce, and the department's visiting, mail and telephone rules, which are its own policy rather than statute, are not on this page. Whether an order can be changed in a particular case is a question for the Family Court or a licensed New York attorney.
Sources for this section (2)
- Fam. Ct. Act § 451 — Continuing jurisdiction
- Soc. Serv. Law § 384-b — Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed New York attorney.