Skip to content Skip to footer

Children of Incarcerated People Are Being Denied the Right to Parental Care

Child separation policy — routinely, legally, and methodically — is commonly imposed upon incarcerated people in the US.

A family looks through photos on Father's Day at San Quentin State Prison, on June 8, 2012, in San Quentin, California.

“The right to your children is the most fundamental one you have, but we strip it from incarcerated parents so casually. This is the family separation crisis that no one knows about.” —Kathleen Creamer, attorney with Community Legal Services of Philadelphia

“90% of children of the incarcerated want a lifelong relationship with their parent.” —Bahiyyah Muhammad, Associate Professor of Sociology and Criminology, Howard University

Elizabeth Hawes: What is the hardest or worst part of your mom being away?

Daughter of incarcerated mother, 13: I was scared you were being hurt and not being able to see you every day like everyone else.

In 1968, Warfield Productions and Dramatic Features released the musical Chitty Chitty Bang Bang starring Sally Ann Howes and Dick van Dyke. The plot revolved around an English inventor with two precocious children and an unreliable flying car. Was Howes his girlfriend? I don’t really remember the details — I was not quite four. What I do clearly remember was the villain: a child-catcher. The child-catcher literally had a big net, much like a butterfly net, that he used to steal all the children in the village. As a young girl, this terrified me.

When you are that small, parents are your world, and when they are gone or you are separated from them — for whatever reason — your world crumbles. Most everyone seems to agree that removing a child from a parent is traumatizing for both. With few exceptions, our nation collectively recoiled in horror at the sight of children separated from their parents and put in cages along the United States southwestern border. Why then, is there a silence around children of the incarcerated being legally, methodically, and routinely taken from their parents?

There is a glaring disconnect between policies and judicial procedures on the one hand, and the people affected by these systems on the other. For instance, in 1997, Congress passed a law called the Adoption and Safe Families Act (ASFA). It states that if a parent does not have physical custody of their children for fifteen out of the preceding twenty-two months, they can lose custody.

For an incarcerated parent, this means that even if they are a great parent and are doing everything they can to fix the problem that brought them to prison, they can lose their child to the system. By contrast, when people join the military and are gone for extended periods, the government doesn’t take away their children.

In both New York State and Oregon there are addendums to the ASFA to rectify this situation. The New York State amendment, added in 2010, specifies that foster care agencies do not have to file for termination of parental rights if:

  • a parent’s incarceration or placement in a residential drug treatment facility is a significant contributing factor to the child’s remaining in foster care more than fifteen of the last twenty-two months;
  • there is a meaningful relationship between the parent and the child; or
  • the parent is planning for the child’s return

Currently in Minnesota, in order for a mom to file to reestablish her rights to her children, her child must be in foster care for at least forty-eight months. If the child had been adopted or there is an adoption agreement, a petition for reestablishment of the legal parent and child relationship cannot be filed.

But here’s the thing. According to Lori Timlin, the Parenting Program Coordinator at the Minnesota Correctional Facility at Shakopee, children are never in foster care for forty-eight months. This law looks reasonable on paper but turns out to be useless.

Nearly half of incarcerated people have children who are minors. Children of incarcerated mothers are five times more likely to wind up in foster care than children of incarcerated fathers, rendering mothers more vulnerable to having their rights terminated and their children taken away from them forever. Mothers were almost three times more likely than fathers to report they had provided most of the daily care for their children. About one in ten fathers relied on someone to provide daily care for their children, compared to one in twenty mothers.

While mass incarceration affects society from top to bottom, it is the children of those in prison who suffer the most. Women are the primary caretakers of children, and since 1982, women’s incarceration is up 750%, according to Timlin. She suggests that one in fourteen children in the US has or has had an incarcerated parent. The belief that parents have the right to care for their children, and their children have the right to be cared for by their parents, is not just a traditional American value — it is a global value. Sadly, child separation policy — routinely, legally, and methodically — is commonly imposed upon incarcerated people in the US.

Women are statistically given longer sentences than men for the same crime. Children of the incarcerated have the right to parental care, and their incarcerated parents have the right to care for their children.

In her book The Ethics of Care: Personal, Political and Global, Virginia Held writes that morality should not be limited to abstract rules under the ethics of care, but able to give moral guidance with caring practices that gradually transform children into admiral beings.

Held says that the ethics of care involves “attending to and meeting the needs of those for whom we take responsibility.” She writes that feminist thinking says all people need care for at least their early years and can only achieve human advancement and thrive by receiving this care. The NW Encyclopedia describes ethic of care as universal obligation, and while caring for children on the planet is admirable and good, caring for one’s own child is an immediate and direct responsibility of the parent. Carol Gilligan refers to this as “moral responsibility.” Held furthers this idea by saying, “It is a moral responsibility for all parents to care for their children.”

If preventing a parent from performing their moral responsibility is amoral, preventing children from having parental access is amoral too.

Knowing that rights form the basis upon which people can make claims, the San Francisco Partnership for Incarcerated Parents developed a document called The Bill of Rights for Children of Incarcerated Parents:

  1. I have the right to be kept safe and informed at the time of my parent’s arrest.
  2. I have the right to be considered when decisions are made about me.
  3. I have the right to be considered when decisions are made about my parent.
  4. I have the right to be well cared for in my parent’s absence.
  5. I have the right to speak with, see and touch my parent.
  6. I have the right to support as I face my parents’ incarceration.
  7. I have the right not to be judged, blamed or labeled because my parent is incarcerated.
  8. I have the right to a lifelong relationship with my parent.

As we reimagine sentencing and conditions in prison, we need to be aware of how imprisonment damages the children of the incarcerated. A conviction does not negate love relationships. It is in the best interests of children to implement an ethic of care to continue these relationships.

A critical message, before you scroll away

You may not know that Truthout’s journalism is funded overwhelmingly by individual supporters. Readers just like you ensure that unique stories like the one above make it to print – all from an uncompromised, independent perspective.

At this very moment, we’re conducting a fundraiser with a goal to raise $13,000. So, if you’ve found value in what you read today, please consider a tax-deductible donation in any size to ensure this work continues. We thank you kindly for your support.