Children of Incarcerated Parents

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 full 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.

You (Yes You!) Need A Will, Too.

Recently, my boyfriend became an uncle. His brother and sister-in-law became the proud parents of a beautiful baby boy. That combined with the large number of my friends who have recently gotten married, purchased houses, and begun having children made me start thinking about estate planning. Really, I kid you not, it did.

Many people think that they do not need a will. However, I believe that many of these people have not really thought through the consequences of dying intestate. Ask yourself, do you know how the laws of intestacy will dispose of your property? Have you thought about what dying without a will means for your loved ones in administering your estate? Have you thought about what would happen to your children if you die without a plan for them?

Estate planning is more than just a will telling everyone who gets your "stuff" when you die. It is a plan for who makes decisions about that "stuff." It is a plan for who takes care of your children and makes decisions regarding their welfare when you die. Estate planning can include plans for how you would like your remains handled after you pass away through the inclusion of burial & funeral plans. Estate planning can also include reassurance to your loved ones about your faith in a higher being.

For many though, estate planning also includes decisions about end of life issues through documents such as living wills and powers of attorney. These types of documents allow you to make decisions about medical treatments in the event that you are in a terminal condition and are unable to participate in making those decisions. They also allow you to decide now who is able to make financial and business decisions for you in the event that you are unable to do so.

When you are ready to begin estate planning, you should consult with an attorney. Estate planning attorneys are able to assist you in meeting your goals for end of life care as well as how you would like matters handled after you die. I urge you not to rely on a computer generated will, living will, or power of attorney or to simply "do it yourself." See this and this for problems that can occur from DIY and computer-generated wills. Only through consultation with a competent attorney will you end up with documents which meet your goals and which are in accordance with state law.

So, what are you waiting for? Call your attorney and get your estate plans in order!