Incarcerated Fathers & The Law

Editors note: This article is educational and not intended as advice for
a specific matter. The laws of each state vary, and readers should seek
legal advice from a licensed attorney in the appropriate state.

It is not revelation to prison readers that American Society has
declared war on crime. All wars generate collateral damage and, in this
case, the damage consists of families of those who bear the burden of
the public’s wrath with crime. This is particularly true of the most
vulnerable and defenseless members of society – the children of
imprisoned men. These children, through not fault of their own, are
often denied spiritual and emotional nurture by their fathers. Never
forget: Incarcerated fathers are parents, too. Fathers are not “social
accidents” as many people have been incorrectly taught due to
negative male-stereotyping.

As an advocate for fathers’ rights for over two decades, I’ve long
understood that positive father involvement is vital because fatherless
children pose a high risk for leading lives of poverty, addiction, and
crime, as documented in my book Fathers’ Rights (Basic Books).

Children are the future of our society, and this is no less true of the
children of incarcerated men. Imprisoned fathers are responsible for
most of the 1.5 million minor children of incarcerated parents. We
need to break the cycle of criminality through positive father-child
involvement because the most reliable predictor of crime is neither
poverty nor race, but growing up fatherless.

Several years ago I represented an incarcerated father I will call Bob.
Bob became embroiled in a divorce and visitation dispute that was as
bitter as it was high profile. Yet I was able to reunite him with his
children and keep him connected to them. This required aggressive
and strategic litigation on my part, but it was worth it. I pursued
visitation for Bob and did not give up until I had obtained a court
order. The court even ordered specific dates and times for phone
visitation. Upon release, he was reunited with his family.

Obviously, visitation is more difficult for incarcerated fathers. However
it is possible. Often a letter or note from a law office motivates
reluctant caregivers to let fathers back into their children’s lives so
bitter legal battles can be avoided. My goal is never to use the law to
manipulate mothers or make their lives miserable, but to maximize
responsible father contact for the child. In Bob’s case, I had to right
hard. It meant going to court many times, initiating discovery, and
correctly persuading the court that the best interest of the minor
children would be served by consistent paternal contact that could be
insured only by court-ordered visitation. Successful litigation kept this
father connected with his kids.

A court order is meaningless without something to back it up. In the
jurisdiction where I practice, that something can be the contempt
power of the court. When a visitation order is violated by mom, then I
can file a Petition for Rule to Show Cause against the mother in the
civil proceeding requesting that the court find her in contempt for
violating the order. If mom is held in contempt of court, she can be
sentenced to a period of time in the county jail. In Illinois, we can also
recommend an alternative to contempt proceeding, because visitation
interference is a crime in my state, which can be prosecuted by the
state’s attorneys office. This decision is best made on a case-by-case
basis.

A critical reason for maintaining visitation, even if only by phone, is to
attempt to prevent the possible termination of parental rights. One
possible problem for incarcerated fathers is the potential threat of
court-ordered termination of parental rights in an adoption. Illinois
courts have held that an incarcerated father may lose his parent rights
if he has shown little interest in his children. Failure to write, telephone
or otherwise communicate or take an interest in his children can
constitute grounds for termination of those rights. This sets the stage
for adoption of his children. In fact, a recent Illinois legislative
initiative gave birth to the Baby Abandonment Law, which allows a
biological mother to legally abandon her infant without notice to the
father under certain conditions. I believe this law is unconstitutional
and ignores the rights of fathers.

If you feel your parental rights may be threatened, familiarize yourself
with the laws of your state and, if it becomes necessary, find a family
law attorney in your state to protect those rights. More importantly,
make sure you educate yourself in the art and craft of parenthood. The
law can be hard on incarcerated dads; it’s harder on those who don’t
invest some energy into being a good dad.

I believe many incarcerated men are ready, willing and able to
contribute to their children’s lives. There is a significant social cost to a
narrowly punitive policy, which may not take account of the needs of
the children of incarcerated fathers. If we recognize and change this
policy, we may achieve a reduction of crime without requiring new
taxes by simply promoting positive father-child involvement.
And in a similar vein, incarcerated fathers need to understand and
protect their parental legal rights. Incarcerated fathers are parents,
too.

Jeffery Leving is an attorney and founder of the Incarcerated Father Project. His practice will respond to any inquiries you may have about fathers’ rights as much as possible at The Law Offices of Jeffery M. Leving, Ltd., 19 S. LaSalle Street, Suite 450, Chicago, IL 60603. (312) 807-3990