The National Pulse

A Parent in Prison

Getting lost in the legal system is an age-old complaint, but few groups have been less visible—and more endangered—than children of incarcerated parents

The numbers jump out: More than 2 million children in the U.S. have a parent who is or was incarcerated, according to the federal Bureau of Justice Statistics.

Of the more than 1.4 million people in state and federal prisons across the U.S., greater than 50 percent of men and 70 percent of women are parents. The average number of children each incarcerated parent has is just over two for men and just under three for women, according to the bureau.

Many myths follow the children of these offenders, the most pervasive of which is that the children will be better off if they have no contact with incarcerated parents, according to Karen Shain of San Francisco based Legal Services for Prisoners with Children. “By definition, children with incarcerated parents are defined as badly parented, but that’s not necessarily true,” Shain says.

Relying on that assumption, states for years have declined to provide for visitation or other regular contact between prisoners and their children. Often it has been up to a child’s caretakers—other family members or foster parents—to make the effort, and many can’t or won’t, she says.

But states are slowly beginning to recognize that both children and prisoners benefit from maintaining contact.

Nebraska recently revised its statutes concerning the termination of parental rights on the grounds of abandonment. Under the new law, passed in 2004, a parent’s incarceration no longer may be the sole evidence of abandonment when the state seeks to terminate a parent’s rights.

In Arkansas and New York state, advocacy groups have successfully pushed for greater recognition by the courts, the penal system and child welfare authorities that children have a legal right to maintain a relationship with an incarcerated parent when the crime was unrelated to the parent child relationship. Those groups are pressing legislatures to codify those rights.

Congress also is beginning to recognize and address the issue. A measure introduced last fall into the reauthorization of the USA Patriot Act would call for the Department of Health and Human Services to provide more help to families of those incarcerated, including facilitating relationships between incarcerated parents and their children.

Conflicting Priorities

But the problem with such efforts comes when Americans’ desire for harsher sentences—especially for drug related crimes—conflicts with the recognized need to help inmates and their families, says Berkeley, Calif., author Nell Bernstein, whose book, All Alone in the World: Children of the Incarcerated, was published last year.

For example, Bernstein says, another part of the Patriot Act proposal would increase penalties for those convicted of manufacturing methamphetamine in a household where children live. In many cases police will arrest all the adults in the household, regardless of their level of involvement. Sending all the adults to prison with longer sentences works against the needs of the children, she says.

Another obstacle was intended to be a boon to children who languish for years in foster care and who are unavailable for adoption because their biological parents’ rights to them have not been terminated. The 1997 Adoption and Safe Families Act spurs “fast track adoption,” setting short, strict time limits for parents to comply with court orders to regain custody of children that have been removed from their care. In some instances, parents have as little as six months to kick an addiction or otherwise clean up their act before their parental rights are terminated.

But the act has worked against families in which a custodial parent goes to prison for a short time. Shain cites the case of a Califor­nia mother who received an 18 month sentence. Under Cal­i­fornia law, which is similar to that in many other states, the mother was allowed to nominate a caretaker for her child while she was in prison. The caretaker, the child’s grandmother, was required to pass an investigation by child welfare authorities before she would be allowed to take in her grandson, even though she was raising other grandchildren, according to Shain.

The investigation revealed that the grandmother had a 20 year old criminal conviction; the state refused to place the grandson in her home. Though her record had been clear ever since, the boy was instead placed in foster care. Under the fast track adoption provisions, the mother’s parental rights were terminated because she was unable to take him back within the prescribed time frame.

“That family lost their son and grandson and brother and cousin, and the boy lost his family. A whole community lost that child, with everyone at the state level simply presuming that he will be better off, without any evidence,” Shain says.

Advocates also cite a 2003 U.S. Supreme Court ruling that prison administrators in Michigan did not violate the civil rights of inmates or their families by putting strict limits on visitation by minor children. Overton v. Bazzetta, 539 U.S. 126.

“What cases like that say is that people just don’t understand that it’s not just the parent who gets punished when contact is cut off. Often the kids suffer even more,” Shain says. In addition, advocates say, most people in prison in the U.S. are there for nonviolent crimes. Women, in particular, tend to be in prison for drug violations or financial misdeeds, such as theft, fraud and similar crimes. In most cases, the children were not neglected or abused, despite their mothers’ criminal activity, according to Shain.

Maintaining Contact

Unless the parent has a history of violence against the child or another close family member, the child most often benefits by maintaining contact with a parent in pris­on, Shain says. Depending on the age, the child should be told where the absent parent is and for how long, she says. Maintaining contact, especially through visits, can help kids deal with anxiety, anger and fear over the separation.

Recently, the focus of services for inmates’ children has been on intervention. Social service agencies have begun to identify risk factors for children who may grow up to be offenders themselves.

While children of offenders often fall into the high risk category, their parents’ incarceration has been found to be a symptom, rather than a cause, of the child’s risk factors, according to Jim Mustin, executive director of the Family and Corrections Network in Palmyra, Va. Issues such as pov­­erty, poor nutrition, family or neighborhood violence, and family history of drug or alcohol abuse have been found to be the highest predictors of future criminal behavior, he says.

Having an incarcerated parent may be a flag that the child needs help, but it’s just one way of identifying children who could benefit from social services, according to Denise Johnston, director of the Center for Children of Incarcerated Parents in Eagle Rock, Calif. Johnston points out that many other kids have the same risk factors, minus an incarcerated parent.

For example, studies indicate that kids who are poor, undereducated and living with or near adults with addiction problems are at similar risks for criminal behavior as kids whose parents are in prison.

“It’s an arbitrary line, taking a child from a family because a parent broke the law. Why not take away all kids who have the risk factors? Because it’s not a valid presumption. It’s not the criminality of the parent that puts the kid at risk,” Johnston says. Johnston adds that some of her strongest allies in pushing for greater access between prisoners and their kids are corrections officers, who recognize that prisoners are often better behaved and more amenable to prison programs that teach life and job skills when they have regular family contact.

Some prisons, especially those that house mothers, have begun to provide more child friendly visitation situations, such as playgrounds or toy rooms where families can spend quality time. In addition, some prisons even allow overnight visitation once a month in special family dorms for mothers who earn the privilege through good behavior. But the effort still faces an uphill battle. The Wash­ington, D.C. based Child Welfare League of America was awarded a grant in 2001 by the U.S. Depart­ment of Justice to establish the Federal Resource Center for Children of Pris­oners. However, that grant expired last year and the DOJ denied renewal, citing a lack of available funding. Advocates say they’re determined. “Any child should have the legal right to see their parent,” Shain says.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.