The Rights of Incarcerated Parents

Over the past year, the number of people incarcerated in Wisconsin has increased to over 22,000. More than half of incarcerated individuals in the state have children. I recently had the opportunity to hear about the important work of Leslie Shear, J.D., clinical law professor at UW-Madison, who in conjunction with law students, dedicates her time towards defending the rights of incarcerated parents through UW-Madison’s Family Law Project.

More than 70% of litigants in family court are not represented by attorneys. Many of the cases that Prof. Shear and her students work on involve people who need legal assistance in order to maintain contact with their children or establish contact with them while in prison. These cases, which involve a number of parties and considerations, can be very complicated and require a significant amount of time to litigate in court.

Research tells us that children do better when they are able to maintain positive relationships with their parents. People who have been previously incarcerated also demonstrate better reentry outcomes if they have strong social ties with family and friends. However, from the legal perspective, courts are interested in deciding what’s in the best interest of the child primarily in the short term. This can make for complex decisions on the part of lawyers and judges that can significantly impact families for the rest of their lives.

In Wisconsin, the law is vague about the rights incarcerated parents have to visits with their children, and a large amount of discretion is left to the courts to decide on this question. Often these cases affect not only the right of a parent but also the parent’s whole extended family’s relationship with the child.

Incarceration can serve to significantly shape people’s’ lives even after they’ve completed their sentences. Parents can have their relationships with their children permanently terminated under the Adoption and Safe Families Act—although the reason for termination cannot simply be due to their incarceration. However, under the act, people who during the past 15 out of 22 months were without their children may no longer have a right to them as a parent. In some states, this act disproportionately impacts parents who have been in prison, leading at times to children’s entrance into the foster care system. The work Leslie and her students do is so important in order to ensure that families can stay together despite incarceration.

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