Posted by Nydia Streets of Streets Law in Florida Child Custody

Under Florida law, a parent who is incarcerated or will be for a substantial period of time may be at risk of losing parental rights to a child. Is house arrest considered incarceration for this purpose? This was an issue in the case K.M. v. K.B., 4D2023-2158 (Fla. 4th DCA March 13, 2024).

The mother sought termination of the father’s parental rights in a private action, basing her request on the father’s 72-month prison sentence for healthcare fraud. While the mother’s petition was pending, the father was released from prison and placed on home confinement for the remainder of his sentence. The mother then filed a motion to determine if the home confinement qualified as incarceration within the meaning of Fla. Stat. Chp. 39.806(1)(d). At a hearing on the motion, the father testified that he is able, with prior permission, to undertake parental duties such as taking the child to and from school, to take the child to appointments, and to have the child visit him at his home. The trial court determined the father was not incarcerated within the meaning of the statute, and the mother appealed.

The appellate court affirmed, citing prior cases which defined incarceration as “confinement in a governmental institution such that a defendant’s liberty is circumscribed to the functional equivalent of custody in the county jail.” The court further noted in a prior case “A house arrest program in which the defendant wears an electronic bracelet used for monitoring his whereabouts, and checks with a supervisor daily by telephone and weekly in person, imposes restraints on the defendant’s liberty prior to trial, but the conditions do not impose on the defendant restraints which are so onerous as to be equivalent to incarceration in the county jail or the forensic ward of a mental hospital.”

Determining the definition of incarceration determined when pretrial house arrest was an issue is equally applicable to a sentence of home confinement, the appellate court concluded “We further hold that when a parent is placed on home confinement with terms which enable the parent to be involved in the child’s care and well-being, the parent is not ‘incarcerated’ under section 39.806(1)(d). Such a holding is consistent with section 39.806(1)(d)’s purpose of protecting the child’s need for a permanent and stable home. Accordingly, as the trial court in this case expressly found that the terms of the father’s home confinement permitted the father to act as a parent to the child, we affirm the court’s dismissal of the mother’s petition.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.