Can the Parental Rights of Prison Inmates Be Severed?

 Posted on January 15, 2025 in Criminal Law

As of 2020, nearly 200,000 children across Illinois have or have had a parent in jail or prison, placing additional burdens on the families and children left behind. It can be difficult for children to visit a parent who is behind bars, but research has shown that regular parenting time can improve the mental, physical, and educational outcomes of the child.

These visits can also increase the likelihood that the incarcerated parent will stay out of the criminal justice system once released.  Parents who are in prison may worry about whether they could lose their parental rights. While abandonment of a child in Illinois can trigger the loss of parental rights, prison does not automatically mean abandonment.

The issue is much more complex and may hinge on the parent’s efforts to see his or her children. If you are facing such an untenable situation, it can be beneficial to speak to an experienced Plainfield, IL family law attorney to understand your options.

Does Incarceration Equal Abandonment?

A parent who is incarcerated clearly cannot care for his or her child on a day-to-day basis. The parent caring for the child can file a petition to terminate parental rights on the grounds that the incarcerated parent abandoned the child, claiming it is in the best interests of the child. The reasons parental rights can be terminated in Illinois include:

• Abandonment
• A conviction for certain violent felonies
• Child abuse
• Serious drug or alcohol dependency

It is important to know that just because the other parent asks for parental rights to be terminated, the court will not necessarily agree. Many criminal offenses do not rise to the level of the termination of parental rights. Certain serious, violent crimes like child sexual abuse, kidnapping, murder, and manslaughter may cause the state to terminate a parent’s rights.

Whether serving time in prison rises to the level of abandonment depends on the sentence length and other circumstances. Under federal law, a child who has been in foster care for 15 of the past 22 months can be considered to have been abandoned. A person who is incarcerated yet stays in contact with his or her child and continues supporting the child financially shows there is no intent to abandon the child.

Of course, a large factor in this situation is whether the parent who now has sole parental responsibilities will take the child to visit the incarcerated parent. There is no law that can force a parent or guardian to do so, and the incarcerated parent cannot leave prison to visit the child. An older child can choose to visit on his or her own, but most children are too young or otherwise unable to do this.

What If the Incarcerated Parent is the Sole Guardian of the Child?

If the incarcerated parent is the sole guardian of a child, this is very different from a child who is currently living with his or her other parent. If the incarcerated parent is the sole guardian, the child could be placed with a family member or in foster care. Any time a petition to terminate parental rights is filed, the incarcerated parent must be given the chance to respond and plead his or her case. The state is less likely to sever the parental rights of an incarcerated parent when:

• A close relative, like a grandparent, is caring for the child.
• The foster care system has not provided appropriate services.
• The agency determines that termination of parental rights is not in the best interests of the child.

Contact a Will County, IL Parenting Time Lawyer

If you are worried your rights as a parent could be terminated because of your incarceration, you should speak to a Joliet, IL parenting time attorney as quickly as possible. When you choose Reeder & Brown, P.C., you will have a strong advocate in your corner who is focused on honesty, integrity, and the highest level of customer service. As a firm that handles family law and criminal defense, we are fully aware of every aspect of your situation. Call 815-885-5980 to schedule your free consultation.