*Please note: This page is still in progress. More links will be posted soon.*

This page also includes articles from legal bulletins and bar publications, and they are posted in alphabetical order.

Family Relationship & Parent-Child Visits in Jail or Prison

• Parental Incarceration: What We Know and Where we Need to Go by Christopher Uggen & Suzy McElrath, 104 J. Crim. L. & Criminology 597 (2014)

As the introduction to a series of articles, this Article summarizes the state of the art in a field that has advanced enormously in the past ten years: parental incarceration. On the heels of a summer 2013 workshop held in the White House Executive Office Building, entitled “Parental Incarceration in the United States: Bringing Together Research and Policy to Reduce Collateral Costs to Children,” the authors summarize five key lessons from this research, and then consider new directions for the next generation of research and policy.

• Prison Visitations Policy: A Fifty-State Survey – Boudin, et al. (2013)

This law review presents a summary of the findings from a survey of prison visitation policies in the fifty states and in the system run by the Federal Bureau of Prisons (BOP). The lives of prisoners and their families are deeply affected by visitation policies, and, to date, there has been no comprehensive effort to compare these policies across all of the fifty states.

• Prison, Foster care, and the Systemic Punishment of Black Mothers, by Dorothy E. Roberts, 59 UCLA L. Rev. 1474 (2012)

This Article analyzes how the U.S. prison and foster care systems work together to punish black mothers in the service of preserving race, gender, and class inequality in a neoliberal age. The intersection of these systems is only one example of many forms of over-policing that overlap and converge in the lives of poor women of color.

Incarceration and Family Policing System

• A Cure Worse Than the Disease? The Impact of Removal on Children and Their Families by Vivek Sankaran, Christopher Church, and Monie Mitchell, 102 Marq. L. Rev. 1161 (2019)

This law review article focuses on how children and parents interacting with the child welfare system experience the removal process, the genesis of a foster care case. It analyzes the gaps and emergent issues in practice, research, and policy related to child removal.  The Article concludes with specific policy and practice recommendations aimed at curbing child welfare’s reliance on removal to foster care as its predominant safety intervention.

• Causes of Action to Terminate Parental Rights of Incarcerated Parent by Elizabeth Williams, J.D., 67 Causes of Actions 2d 1, Thomson Reuters, originally published 2015, updated October 2021)

This part of a legal secondary source discusses the involuntary termination of parental rights and the effect of a parent’s incarceration on a court’s decision whether to terminate the parent’s rights to his or her child.

• Children, Parents & The State: The Construction of a New Family Ideology by Deseriee A. Kennedy, 26 Berkeley Journal of Gender, Law and Justice (2011)

This Article suggests reconceiving the state’s role in intervening in these families. It suggests that the ubiquitous “best interests of the child” standard fails to adequately protect incarcerated parents’ liberty interests in maintaining ties with their children and that, in these cases, the standard has metamorphosed into a “best parent” standard. To address this problem, this Article proposes a number of reforms including using a higher standard of proof than is currently required in termination proceedings and instituting policies to preserve families during periods of parental incarceration.

• COVID 19 and the Due Process Rights of Incarcerated Parents By Timothy Heinle, On the Civil Side, A UNC School of Government Blog (June 16, 2022)

The ramifications of the COVID-19 pandemic on prisons and the court system have been wide-reaching. We are still seeing, and will likely continue to see, the tentacles of these issues stretch into cases for years to come. The North Carolina Supreme Court recently issued a decision tackling one such issue: whether a parent who was unable to attend a termination of parental rights hearing because he was incarcerated during a pandemic-related prison lockdown was entitled to a continuance so he could be present for the hearing. In re C.A.B., 2022-NCSC-51.

• Creating the “Bad Mother”: How the U.S. Approach to Pregnancy in Prison Violates the Right to be a Mother By Robin Levi, Nerissa Kunakemakorn, Azadeh Zohrabi, Elizaveta Afanasieff, and Nicole Edwards-Masuda, 18 UCLA Women’s L.J. 1 (2010)

This article will set forth how U.S. state and federal law enforces and reifies the perception that people in prison are not suited to be mothers, providing examination of these principles in California state prisons. The authors also set forth how the U.S. government has failed to uphold the human rights to family, information, health, bodily integrity, dignified treatment, life, and the right to be free from cruel, inhumane or degrading treatment. The article concludes with a call for all people, especially mothers, to work together to protect the rights of mothers by bringing the U.S. into compliance with international law by opposing stereotypical notions of who is a good or bad mother. 

• Incarcerated Parents: What You Should Know When Handling an Abuse or Neglect Case by Mimi Laver, ABA Child Law Practice (2001)

This article explores selected recent decisions and case law trends. It also provides practice tips for lawyers and judges handling cases involving children in care who have a parent in prison or jail.

• Harm of Child Removal, The by Shanta Trivedi, 43 New York Univ. Rev. L. & Soc. Change 523 (2019)

This law review is the first to comprehensively examine why the harm of removal should be a featured part of every child welfare decision. After doing so, it continues to analyze existing law and legal practices to demonstrate how consideration of the harms of removal can be built into existing legal frameworks to achieve the stated purpose of the child welfare system and truly protect our children.

• Incarcerated Parents and Child Welfare in Washington by Sayer Rippey, 95 Wash. L. Rev. 531 (2020)

This Comment explores the disparate effect of Adoption and Safe Families Act (ASFA) on families with incarcerated parents and examines the structure and impact of Washington State’s incarceration exception to the termination requirement. The author argues that more states should adopt exceptions for incarcerated parents, that Washington’s exception should go further to protect these parents, and that, ultimately, a wide variety of non-legislative changes are necessary to protect families before and during incarceration.

• Procedural Due Process Rights of Incarcerated Parents in Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis Termination of Parental Rights Proceedings: A Fifty State Analysis By Philip Genty, 30 J. Fam. L. 757 (1992)

The author recognized that, particularly with respect to incarcerated mothers, imprisonment of a parent disrupts intact, viable families. The overwhelming majority of incarcerated mothers were active parents to their children prior to their incarceration and intend to continue in that role after their release. The time of parental confinement must therefore be viewed as an interlude, during which the parental ties must be nurtured and supported so that, to the greatest extent possible, the parent-child relationship is as strong after the parent’s release as it was before.  This law review notes how the exact opposite occurs due to legal frameworks and social work practices.

• Sentencing Judge’s Role in Safeguarding the Parental Rights of Incarcerated Individuals, The By Anna Iskikian, 53 Columbia Journal of Law and Social Problems 1, 133-166 (2019-2020)

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims. 

• What Hillary Clinton’s terrible foster care law did to poor children of color by Richard Wexler, Daily Kos, online blog (February 16, 2016)

In this blog post, the author examines the federal law, called the Adoption and Safe Families Act (ASFA).  While noting that the name of the law was “Orwellian” in that it was not about adoption or safe families, they examine the law Congress passed in 1997, one year after the welfare law, with a similar aim to target or demonize impoverished women, especially women of color, and take away their children.