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Family Law Newsletter

Restricting or Denying the Visiting Privileges of Prisoners with Their Children

According to the Child Welfare League of America, an estimated 200,000 children have a mother in prison, and at least 1.6 million children have a father in prison. As such, many children have been forced to enter the foster care system, and there has been a significant increase in the number of children visiting their incarcerated parents.

Such overwhelming statistics have influenced federal adoption law and, more recently, played a role in a notable U.S. Supreme Court decision on the constitutionality of restricting prison visitation by the children of inmates.

Adoption and Safe Families Act

With the goal of achieving prompt permanency plans for children in foster care, Congress passed the Adoption and Safe Families Act (ASFA) in 1997. The law requires states to move to sever a parent’s right to a child after the child has spent 15 months in foster care.

As mothers are often their child’s primary caretaker, ASFA has certainly affected the parental rights of incarcerated mothers, whose sentences prevent a timely reunification with their children. For example, under ASFA, a state would most likely file to terminate the parental rights of a mother serving five years in prison, where her children have been in foster care for 15 of the last 22 months. In fact, an incarcerated mother will often surrender her parental rights after her children have spent 15 months in foster care, so that her children can be formally adopted by their foster family.

When a State May Choose Not to File Termination Proceedings

Although the 15-month cutoff imposed by ASFA can have a harsh impact on incarcerated parents and their children, exceptions to the law allow caseworkers to examine individual cases for compelling reasons not to file termination proceedings, including:

  • When a relative is caring for the child
  • When the foster care agency has not provided appropriate services
  • When the agency documents that termination would not be in the child’s best interests

In order for any of these exceptions to apply, however, the mother making a case for reunification must generally have regular contact with her caseworker and frequent visits with her child.

The Constitutionality of Restrictions on Visits to Inmates

The parental rights of inmates have also been affected by the U.S. Supreme Court holding in Overton v. Bazzetta (2003). In Overton, the Court upheld the constitutionality of Michigan regulations on visits to inmates, which limits who can visit prison inmates and allows for the suspension of a prisoner’s visitation rights if the prisoner violates certain prison rules. In response to an overall increase in the number of visitors (including children) and related concerns about internal prison security problems, the regulations deny inmates the right to have visits from their children if their parental rights have been terminated. Furthermore, the regulations require all children permitted to visit to be accompanied by a parent or guardian.

The case involved a class-action lawsuit brought by Michigan prison inmates, who challenged the visitation regulations as violating the following constitutional rights:

  • The right of free association under the First Amendment
  • The right against cruel and unusual punishment under the Eighth Amendment
  • The right to due process of law under the Fourteenth Amendment

Ultimately, the Court held that the visitation regulations did not violate the inmate’s constitutional rights, reasoning that “many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.” Further, the Court specifically justified the restrictions on visitation by children based on the rationale that “the regulations bear a rational relation to [the state’s] valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury.” While directed specifically to the constitutionality of Michigan’s regulations, the Court’s decision will influence the visitation rights of inmates across the nation.

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