March 2016 Bar Bulletin
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March 2016 Bar Bulletin

Incarcerated Parents Complicate Family Law Cases

By Kim Schnuelle


It is frequently reported that the United States has one of the highest incarceration rates in the world. While the United States contains only approximately 5 percent of the total world population, it nonetheless holds approximately 25 percent of the world’s prison population.1

By the close of 2014, the United States had an estimated total of 1,561,500 prisoners in state or federal custody, a small decrease of 1 percent from the prior year.2 Of these prisoners, only approximately 7 percent were female.

Although the effects of incarceration on the family can cut across any and all racial and gender lines, the effects are felt more often in communities of color.3 As just one example, in 2010 one-third of all black, male high school dropouts aged 20 to 39 were imprisoned in comparison with only 13 percent of their white peers of comparable age and gender.4

These statistics can have a very real effect on families and, as a result, on family law litigation. Incarcerated parents are still parents and their custody status can have profound effects upon their ability to interact with and support their children. This article seeks to explore this impact — both in terms of practical tips for interacting with an incarcerated client or incarcerated opposing party, and in discussing legal measures the prudent practitioner will consider in any family law case involving one or both incarcerated parents.

If a client is incarcerated at the beginning of representation, or becomes incarcerated during the pendency of representation, the initial issue becomes one of contact with the client. If the client is in the King County jail, in-person visitation is easier to accomplish than if they are incarcerated in state prison or federal detention.

Websites for individual detention facilities have visiting information as well as contact phone numbers, and visitor rules and regulations. Some facility regulations may not appear obvious, so it is important to verify the facility rules before any visitation. For example, cell phones may not be allowed in the facility and thus should be left in the car before entry.5 Identification is always required and the visitor will have to go through metal detectors.6

There may be specific times allocated for attorney visits and an attorney will typically need to show evidence of bar membership and bar identification.7 Visits are limited to specific times of day and days of the week, so it is important to “go in prepared” to accomplish what needs to be discussed and done in the available time for the visit.

In terms of court appearances, while inmates confined in the King County jail are typically transported in custody to family law and domestic violence hearings, inmates in other facilities must arrange to appear telephonically. It is the inmate-litigant’s counsel who bears the responsibility for arranging this telephonic appearance. As the inmate is not then physically present, it is thus impossible to “negotiate in the hallway” to seek settlement and in such circumstances the court must typically make any needed determinations at hearing and on the record.

If the opposing party is incarcerated, in-person visitation is less likely. The major exception to this general rule is when a deposition of the incarcerated parent is required. It is a longstanding rule that the taking of depositions should be liberally construed “with a view to effecting their objects and promoting justice and to the end that a litigant in a pending action may be afforded a reasonable opportunity to procure testimony in support of his cause.”8

Notwithstanding this liberal construction, when a party is incarcerated, leave of court “upon such terms as the court prescribes” is required before any deposition can occur.9 Leave is obtained via a motion, typically noted without oral argument. Where the opposing party is incarcerated, the logistics may make appearance at trial and witness examination difficult. However, a deposition may be used by any party for any purpose at trial if a court finds that the witness is unable to attend due to imprisonment.10 For this reason, the prudent practitioner will always depose the opposing, incarcerated party if it seems likely that the case will go to trial.

In terms of family law litigation issues, the parent’s incarceration status will by definition affect the parenting plan and child support. If the litigation involves a divorce or the ending of a committed intimate relationship, it will also impact asset and debt division.

With respect to parenting issues, it is a longstanding principle that the right to raise one’s own children is an essential right.11 The integrity of the basic parental family unit has historically found constitutional protection under the Due Process Clause of the Fourteenth Amendment,12 the Equal Protection Clause of the Fourteenth Amendment13 and the Ninth Amendment.14 It is thus “cardinal … that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”15

Notwithstanding these basic Supreme Court rulings, a parent’s incarceration status de facto changes their ability to be physically present and involved in their child’s life. In determining a parenting plan or residential schedule, although there are specific statutory factors for consideration,16 the best interests of the child or children are controlling.17

When a parent is incarcerated, parenting time should be “determined on a case by case basis, after considering the length of the prison terms, the degree of the parent-child bonding prior to incarceration, the distance from the child’s home to the prison, the security restrictions at the prison, as well as the ages and developmental needs” of the children.18 Absent agreement of the parties, it is likely that input from a guardian ad litem or parenting evaluator will be needed to determine what visitation arrangement is in the children’s best interests.

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