Family Integrity and the Prison Boom: The Impact of Federal and State Policy on Custody Rights for Incarcerated Parents

Abstract

This study examines the effect of incarceration on family integrity in the United States. In the age of mass incarceration, an unprecedented number of parents of minor children have been confined in prisons and jails. Some of the children left behind ultimately enter the foster care system as a result of their parent’s incarceration, placing their parents at risk of losing custody rights.

Compared to other parents involved in the child welfare system, are incarcerated parents at a heightened risk of the termination of their parental rights (TPR)? The passage of punitive federal and state laws beginning in the late 1990’s threatened to elevate this risk for parents in prison, raising concerns over family integrity for families involved in the justice system. To what extent did federal or state laws impact the risk of TPR faced by incarcerated parents? This paper seeks to answer these questions in a series of quantitative analyses using a large sample of national foster care data. The laws examined are the Adoption and Safe Families Act of 1997 (ASFA), which codified dramatic reforms to the foster care system, and state statutes determining the grounds on which parental rights can be revoked.

There are two central findings. First, an analysis of the historical impact of the ASFA suggests that these federal reforms did not disproportionately raise the risk of TPR for incarcerated parents. Second, while nationally incarcerated parents do not face a heightened risk of TPR compared to other parents with children in foster care, there is considerable heterogeneity on the state-level in the impact of incarceration on parental rights. In some states, incarcerated parents are at an elevated risk of TPR, while in other states, the risk of TPR is actually diminished for parents in prison. This variation across the states, however, is not driven by state statutes, which range widely in their degree of punitiveness. In sum, incarcerated parents generally do not face a large or disproportionate risk of losing their custody rights. In the states where there this is an observable disproportionate risk, further tests are required to determine what forces are driving those trends at the state or local level.