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Limiting Visitation of Incarcerated Parent

canstockphoto10370360-1000-ffccccccWhite-3333-0.20.3-1.pngAs a rule, the Courts have historically encouraged the visitation rights of parents, despite separation of the parties, believing that a relationship with both mother and father is essential to the upbringing of a child. However, what if a parent is incarcerated? Do the Courts still encourage visitation if a parent is imprisoned? Can visiting a parent in jail/prison be detrimental to the mental and emotional development of a child?

Under Tennessee law, the fundamental right to care and to have custody of a child is one of the oldest judicially recognized interests protected under federal and state law. Termination of a parent's rights is considered to be "a grave and final decision, irrevocably altering the lives of the parent and child involved and 'severing forever all legal rights and obligations' of the parent." Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). It is for this reason that Courts continue to allow an imprisoned parent to be involved in his or her child's life, despite the crime(s) he or she has committed. However, can allowing such visitation be mentally and emotionally damaging to a child?

A recent study, funded by the National Institute of Justice, indicated that approximately sixty-five (65) percent of children reacted negatively to visiting an incarcerated parent. Among those that reacted negatively, the parental caregivers characterized the children's reactions as largely emotional, often involving expressions of fear, anger and anxiety, resulting in excessive outbursts, crying and symptomatic depression. Alternatively, only thirty-five (35) percent of children reacted positively to visiting an incarcerated parent. In some cases, the children exhibited heightened spirits and improved good behavior during visits, often with a promise of future visitations as an enticement for this good behavior.

Interestingly, a child's reaction often depended on the correction facility and the prior parent-child relationship. For example, if a child is forced to endure long drives to the correctional facility, invasive search procedures and/or poor treatment by the correctional employees, the child is more likely to react negatively to visiting an incarcerated parent. Furthermore, if the visiting rooms are less conducive to a family-like atmosphere and limit the interaction with the parent, the child is more likely to act out or have a negative reaction to the visitation.

The parent-child relationship prior to incarceration also significantly effects how the child may react to visiting an imprisoned parent. If the child did not have a strong parental attachment, or perhaps even had a negative attachment to the parent, the child displayed symptoms of having an adverse reaction to visiting the parent due to the previous strained relationship. Alternatively, this was not the case if the child had a strong, healthy relationship with the parent prior to incarceration.

Even though the judicial system has the best of intentions in allowing incarcerated parents to continue having visitation rights, the Courts are also required to examine what is in the best interest of the child. While, granted, it is agreed that termination of parental rights is not an applicable solution for a majority of situations, the Court may determine that the potential long-term emotional, mental, and behavior effects of visiting an incarcerated parent could be a significant factor in determining the number of visiting hours an incarcerated parent is entitled to. Furthermore, it is essential to remember that no two situations are alike, and this is why the circumstances of each case must be evaluated and the Court must consistently continue to examine what is in the best interests of the child in question.

If you are the primary caregiver of a child whose mother or father is incarcerated and are concerned about the effect this environmental upbringing is having on your child, please contact Cole Law Group, so we may evaluate the circumstances of your situation and assist you in determining if a reevaluation of the terms of your permanent parenting plan, or parental visitation schedule, is in the best interests of your child.

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