What Happens to Children of Incarcerated Parents?

Anderson & Boback Family Law
4 min readDec 9, 2018


Today the number of children of incarcerated parents is staggering. It is estimated that over 5 million children in the U.S. have had parents who are or were incarcerated at some time during their childhood. In Cook County studies have shown that up to 10% of children in the city have parents who are or were incarcerated at some point in their childhood. Having a parent who is in jail or prison can affect a child in many different ways. Lurie Children’s Hospital published an article in July 2018 discussing the health implications of children having parents who are incarcerated. Many studies have been published on the impact an incarcerated parent can have on children’s school performance and a child’s emotional and behavioral health.

Protecting a Child’s Rights When a Parent is Incarcerated

In this post, we are going to look at how the child’s rights are still protected if they have a parent who is in incarcerated. Several scenarios can play out when a parent of a child is put in prison. The first issue that children deal with is who is going to care for the child? If the parent who is incarcerated is not the primary custodial parent, then the issue becomes whether the parent in prison will be able to see the child while in prison. However, if the incarcerated parent is the primary custodial parent, then the first issue needs to be who will care for the child.

When the Custodial Parent is Incarcerated

If there is another parent involved, many times this parent will assume the primary parental role. However, the Court may need to alter an already existing allocation judgment or may need to make a determination regarding paternity to make this change official. If the child does not have another parent able to take care of the child, then the child may be placed with a relative or another guardian.

Determining the Best Interest of the Child

Any decision on parenting time or “custody” in Illinois is based on the best interest of the child. Depending on the situation, the Court can appoint someone to help the Court make that determination. There are three types of appointments: Guardian Ad Litem; Child Representative; and Attorney for the child.

Appointment of a Guardian Ad Litem

A guardian ad litem or “GAL” investigates the facts if the case interviews the children, and the parents or other parties seeking parenting time. The GAL may testify in Court or submit a written report with recommendations for what is in the best interest of the child. The GAL’s duties are set out in 750 ILCS 5/506.

Appointment of a Child Representative

A child representative is an attorney for the child who advocates for the best interest of the child. The child representative is required to meet with the child and the parties and to investigate the facts of the case. Unlike a Guardian Ad Litem, the child representative cannot be called to testify at Court. The child representative’s duties are set out in 750 ILCS 5/506.

Appointment of an Attorney for the Child

An attorney for the child is exactly what it sounds like, they are the attorney for the children and advocate for what the children want, not necessarily what is in the child’s best interest.

Parenting Time and Children Visiting an Incarcerated Parent

Once the Court determines who the child should stay with, the Court also looks at whether it is in the child’s best interest to be able to visit the parent in prison. Sometimes due to logistics, this is not possible. Many parents are incarcerated over 100 miles away from where their families are. This can be extremely disruptive for children. However, not seeing a parent on a regular basis can be equally disruptive. Many times, the Court will rely on one of the above-mentioned representatives to help it determine whether scheduled parenting time at prison is in the child’s best interest.

Child Support and the Incarcerated Parent

Another issue when a parent is incarcerated is child support. According to the Attorney General of Illinois, just because a parent is incarcerated does not mean that they are relieved of their support obligation. The support obligation continues to accrue and once the parent is out of prison, the parent will have to begin paying the back amount plus interest accrued and back pay. There are aid programs available that help children whose parents are incarcerated.

Reunification Therapy After Parent is Released from Jail

Once the parent is released from prison, other issues can arise, especially if the child did not get to see the parent frequently while incarcerated. A great option for the family during this time is reunification therapy. The reunification therapist goal is to help the parties gain trust in each other, work through the difficult time of separation, and ultimately help the parent and children reunite.

Organizations Helping Children of Incarcerated

Interestingly, there has been much research and many non-for-profits are focused on helping children of incarcerated parents and parents who are incarcerated. Below are a few of those organizations.

  • U.S. Department of Health and Human Services
  • Child Welfare Information Gateway: www.childwelfare.gov
  • Youth.gov
  • Illinois Department of Human Services
  • The Women’s Treatment Center

How You Can Help

Remember, this time of year is especially difficult for families who are separated due to a parent being in prison. These young children have no fault in their parents’ crimes but are paying a great price for it. If you are lucky enough to have a family and a little extra this Holiday Season, please look at participating in Angel Tree or another charity that helps provide gifts to children of the incarcerated.

THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/what-happens-children-of-incarcerated-parents/



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