A Parent In Prison
ORC 3119.05 — incarceration is not voluntary unemployment
Incarceration is not voluntary unemployment. When a court or child support enforcement agency calculates a parent's income for child support, it may not find the parent voluntarily unemployed or underemployed, and may not impute income to the parent, if the parent is incarcerated. A parent counts as incarcerated if confined under a sentence imposed for an offense, or serving a term of imprisonment, jail or local incarceration, or another term under a sentence a government entity is authorized to order.
Changing the order. When either parent asks the court to modify the amount of support, the court recalculates it under the schedule and the applicable worksheet. If the recalculated amount is more than ten per cent greater or less than the amount in the existing order, the difference is a change of circumstance substantial enough to require a modification. A substantial change of circumstances not contemplated when the order was issued or last modified also leads to a modification, unless the court finds the schedule amount unjust or inappropriate and not in the child's best interest and enters its findings.
Permanent custody: the grounds tied to incarceration. On a motion by a children services agency for permanent custody of a child, the court decides whether the child cannot be placed with either parent within a reasonable time or should not be placed with the parents. Among the findings it may make by clear and convincing evidence are that the parent is incarcerated for an offense committed against the child or a sibling of the child; that the parent is incarcerated when the motion is filed or at the dispositional hearing and will not be available to care for the child for eighteen months or more after the filing or the hearing; and that the parent is repeatedly incarcerated and the repeated incarceration prevents the parent from providing care for the child.
The same list includes a parent who has shown a lack of commitment toward the child by failing to regularly support, visit or communicate with the child when able to do so. Permanent custody is granted only where the court also finds, by clear and convincing evidence, that it is in the child's best interest, weighing among other things the child's relationships with parents, siblings and relatives, the child's wishes, and the child's custodial history. The parents' right to appeal a grant of permanent custody is not restricted by the section.
Parenting time and custody between parents while one is in prison, and the department's visiting, mail and telephone rules, which are its own policy rather than statute, are not on this page. Whether a support order can be changed in a particular case is a question for the county child support enforcement agency or a licensed Ohio attorney.
Sources for this section (3)
- ORC 3119.05 — Computing a parent's income, and the parent who is incarcerated
- ORC 2151.414 — The hearing on a motion for permanent custody
- ORC 3119.79 — Modifying a child support order, and the ten percent that counts as a substantial change
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed Ohio attorney.