Written by Tana Fye
I’m currently appointed to represent several children in abuse and neglect proceedings. Among my clients are children of parents who are currently incarcerated and children of parents who have been incarcerated at some point in their lives. So when I saw this post on the Freakonomics blog of the New York Times, stating that 1 in every 28 children in America has a parent behind bars, I was really intrigued. Intrigued that incarceration of parents affects so many children, and intrigued to find out what kind of impact that has on those children. It also made me start thinking about what parents do with their children when they are looking at either long or short term incarceration; and how are those children’s needs being met when their parents are not earning an income during incarceration, or are only earning an income sufficient to buy cigarettes and candy.
According to at least
one source, the number of incarcerated individuals has grown every year for the last 36 years. According to
another source, more than one in every 100 adults in the U.S. are incarcerated in either prison or jail. 63% of those who are in federal custody and 55% of those who are in state custody are parents of a child under the age of 18 (
a different source states that 54% of all inmates have children between the ages of 0 and 17). This means that over 1.5 million children have a parent who is serving a prison or jail sentence; that’s approximately 2% of American children. Of those children with incarcerated parents, 22% are under the age of five; and their average age is 8 years old.
What does it mean for children to have an incarcerated parent? Financial instability, family relationship instability, school performance and behavioral issues, and stigma (see
this). Some of these issues, especially financial instability, continue long after the parent is released from custody. This is because “[i]ncarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility,” according to a Pew Report (the f
ull report and a
summary). In addition, incarceration not only negatively impacts the inmates upward economic mobility, but also the economic mobility of children of inmates.
So what do parents do with their children when they are going to prison or jail? Typically, parents make arrangements with a family member or close friend to care for the children while they are incarcerated. This appears to usually be done informally, either with nothing in writing, or a power of attorney written by the parent. It appears that parents and those who care for the children of incarcerated parents do not typically go through a formal guardianship process, although this is highly recommended. A formal guardianship, including a temporary guardianship, provides stability and certainty to the relationship. A guardianship means that the child’s caretaker will be given access to information about the child and will be able to make medical and other types of decisions regarding the child without any delay or uncertainty.
How are children’s needs being met while a parent is incarcerated?
South Dakota law requires parents to pay child support for their children, even while incarcerated. If the parent’s income is below minimum wage, or even zero, the parent is presumed to be capable of full-time employment at minimum wage. This means that child support is calculated based upon that full-time employment at minimum wage for an inmate, unless there is physical or mental disability. However, where the inmate makes just a few dollars per day, they are likely to not be able to meet the child support obligation and will come out of prison or jail with a large amount of child support arrearages. This also means that the state often must get involved and provide benefits to support the child.
There are resources available to help those who are dealing with the incarceration of those with children. See
these free publications if you are in this type of a situation or may be at some point. In addition, an attorney can be really helpful in setting up a guardianship, obtaining child support, or even just helping you know what you need to do.
