Posts filed under ‘Parental Rights’

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

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,

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

March 4, 2009 at 10:59 pm Leave a comment


By Jeffery M. Leving

A mother recently regained custody of her newborn baby from DCFS after being accused of placing her baby face-down in a water-filled toilet bowl during a family party.  Last week, the body of a decomposed newborn was discovered in the same mother’s Belleville, Illinois home.  The Illinois “Safe Haven” law (Abandoned Newborn Infant Protection Act, 325 ILCS 2/1, et seq.) is an emotional reaction to this type of tragedy.  We can no longer continue to ignore the rights of disenfranchised fathers to protect their children from neglect and worse.

Since “Safe Haven” became a law in Illinois in August 2001, 54 Mothers illegally abandoned their babies in non-approved locations, with 27 of the babies dying.

The Illinois “Safe Haven” law was born out of good intentions to protect infants from literally being thrown into garbage cans and otherwise left to die. However, the manner in which this law and others throughout America are written have created a number of problems for both children and their fathers.

First, the anonymity given to the mother by the “Safe Haven” laws leaves little or no chance that the father will be contacted so that he can pursue custody or protect his child from harm. In fact, in the case of a mother dropping off a child forever pursuant to a “Safe Haven” law, the father does not even need to really be notified. In contrast, in a legal adoption proceeding, the father has to formally relinquish his parental rights.

Secondly, there is an unhealthy gender disparity in our system. Fathers who walk away from parenthood are labeled “deadbeat dads”, or may even go to jail for failing to fulfill their financial responsibilities. On the other hand, mothers who walk away from their babies are protected by the “Safe Haven” laws from any legal and financial accountability and are often viewed as courageous.

Finally, and most importantly, the impact “Safe Haven” laws have on abandoned children must be addressed. The children are denied the chance to grow up with their dads or any other biological family members. They are also denied the right to know their true identity and medical history, which can create a potentially life-threatening situation.

Statistics show that in spite of “Safe Haven” laws, children continue to be thrown away in dumpsters. The “Safe Haven” laws need to be rewritten to protect the children whose mothers are disposing of them; and to protect the fathers who have the right to know that their children exist so they can protect them from harm, death and abandonment.

Jeffery M. Leving is one of America’s most prominent family law attorneys.  His website is

March 4, 2009 at 9:19 pm Leave a comment