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The Bureau of Justice Statistics reported in December 2013 there were more than 1.5 million prisoners in state and federal prisons throughout the country.  In New York State, roughly 32,000 are held within the state jail system and another 56,000 are incarcerated within the state prison system. There are also 122,000 offenders on probation and another 40,000 on parole.

What’s more, the BJS reports some 52 percent of state inmate and 63 percent of federal inmates have minor children. In fact, the percentage of minor children with an incarcerated increased by nearly 80 percent between 1991 and 2007. This is estimated to be around 2.7 million children, with the majority having a child age 4 or younger.

This poses some unique and sometimes overwhelming challenges for families – and by extension, the family courts. While most social service agencies will seek to preserve and restore the parental relationship for parents facing shorter sentences, for repeat offenders and those facing longer terms, the other parent or guardian may seek a finding of abandonment and termination of parental rights. This is also true when the crime of which the offender is convicted was against children or was especially violent.

Our New York City family law attorneys recognize the process of seeking termination of parental rights due to incarceration can be an arduous one.

The federal Adoption and Safe Families Act allows the action to be taken if a child has been in foster care for 15 of the most recent 22 months. This does not apply to children who living with friends or family members (known as private placement). Still, some find this especially troubling because, according to the Annie E. Casey Foundation, the average prison term for most parents – even those accused of non-violent drug or property crimes – exceeds 15 months. The law does say, however, termination must be based on the court’s finding of a “compelling reason.” Simply asserting this lapse of time isn’t going to be enough.

Typically, the court must issue a finding of neglect or abandonment.

This was the issue recently before the New York Supreme Court, Appellate Division, First Department in In re Z.J. Lewis.

The father was incarcerated for nearly two years when child welfare authorities sought a finding of abandonment as related to the father. The court granted this request, finding the father’s incarceration did not excuse him from parental obligations. Further, the child welfare agency was not required to show it used diligence to reunited the family, but there was no indication the agency in any way hindered communication.

State law allows termination of parental rights of incarcerated parents when the parent fails on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or arrange visits with the child.

However, state law does allow reinstatement of parental rights if a permanent placement of the child is not found within a certain time frame. Again, though, this is only true when the child is in foster care while the parent is imprisoned.

Our experienced New York family law attorneys are committed to helping you achieve the goals that will best benefit your children and you – whether that is preserving the relationship between an incarcerated parent and child or severing the ties of a toxic or non-existent relationship.

Call our New York City family law offices at (718) 864-2011.

Additional Resources:

In re Z.J. Lewis, Nov. 25, 2014,  New York Supreme Court, Appellate Division, First Department

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