Legal Question in Family Law in Virginia

Re: Child Custody of Incarcerated Mother

Your husband will not automatically gain full custody of his daughter in the event that the child's mother goes to jail.

The court having jurisdiction over these matters will need to review the relevant issues in order to make a determination as to what now with respect to custody may be in this child's best interests.

Re: Child Custody of Incarcerated Mother

It is my opinion that your husband will by default have custody of his daughter; he and the child's mother now have joint custody, and with th inability of the mother to exercise her custody rights, physical custody should shift to him. However, the grandparent(s?) are likely to disagree with this assessment, and the matter will probably have to be decided by the court. While presumptions between parents have specifically been abolished by statute, a natural parent is the presumptively correct person to have custody as against third parties. This presumption has been applied in cases between parents and grandparents.

That said, it would still be wise for your husband to discuss the welfare of the children with the grandparent(s?) as soon as it is known that the mother will be incarcerated. The grandmother may be helpful in transitioning the child to the father, and would be relieved to hear that having the father assume physical custody will not mean the grandmother completely loses contact with the child.