The Long Road to Regaining Custody - Women Beyond Bars
page-template-default,page,page-id-16019,ajax_fade,page_not_loaded,,qode_grid_1400,hide_top_bar_on_mobile_header,qode-content-sidebar-responsive,qode-theme-ver-16.8,qode-theme-bridge,disabled_footer_top,disabled_footer_bottom,wpb-js-composer js-comp-ver-7.7.1,vc_responsive

The Long Road to Regaining Custody

Incarcerating women creates more consequences than just criminal records. One of these consequences is displaced children, and the often-lengthy process a woman must undergo to ensure this doesn’t happen.

West Virginia is one of the top states for women’s incarceration not nationally, but globally. A 2018 study from placed West Virginia at number 14 for women’s incarceration rates throughout the world. There are 179 out of every 100,000 women currently in state or federal prisons or local jails. Many of these women are mothers. More than 60 percent of incarcerated women in America have a child under 18, according to a 2009 study from the Bureau of Justice Statistics.

Being separated from their children is one of many run-off costs of incarceration for women. According to the Child Abuse and Neglect Technical Assistance and Strategic Dissemination Center, 10 percent of incarcerated mothers have a child in foster care or other state care. The remainder of children with an incarcerated parent will be under the care of a kinship caregiver, such as aunts, uncles, or grandparents.  Regardless of whether the child is placed in foster care or taken in by a family member, reunifying their families can be a huge hurdle for women upon re-entering the community.

Being incarcerated doesn’t automatically revoke a woman’s custodial rights to her children, but the process of getting her children back upon completing a sentence can be long and involved. Attorney David Straface of Morgantown, West Virginia says many parents don’t even attempt to petition the court for a custodial modification. Their children, along with children whose parents fail to properly fulfill requirements to regain custody will enter into the foster care system and become wards of the state.


The court may prescribe an improvement period of around six months once the child is removed, during which the mother would strive to show substantial improvement. This improvement period will begin upon release if the mother is incarcerated.

She may be required to take parenting classes, anger management courses, substance abuse classes, or any other rehabilitative measures the court deems necessary. These classes are often provided free of charge through local programs or the child’s caseworker.

Kelli Robinson of Clarksburg, West Virginia shared custody of her two sons with her ex-husband before her substance abuse escalated and she was arrested for daytime burglary and served 45 days in jail. Robinson’s rights were suspended, and her children went to live full-time with her ex-husband, who was attempting to terminate her custodial rights. Upon release from jail, Robinson filed a petition for modification in Family Court, and has slowly been able to work her way towards reunification. The court ordered her to attend substance abuse treatment before being able to even see her children.

An unexpected road-block to regaining custody is wait-listing concerning substance abuse or other mandated programs, as was the case with Robinson. Robinson was mandated by the court to attend substance abuse treatment following her arrest and term in jail, but the only providers offering outpatient therapy on her insurance had waiting lists of several months.

Because of this, Robinson enrolled in a seven-month recovery program, during which her children were in the care of their father. Had her children not had another willing/able guardian, they would have entered the foster care system.

Robinson has advanced from 48 hours a week of unsupervised time with her children to having custody split 40/60 between her and her ex-husband. Robinson expects to return to the original 50/50 custodial arrangement in January 2019.

Robinson’s situation was simpler than some because she and her husband owned two homes, making it easier for her to settle back into life post-incarceration. For many other incarcerated women, the road to custody is more difficult. If the children were removed from their home for abuse and neglect and became wards of the state, custody for the formerly incarcerated parent gets decided in Circuit Court.

There are many possible roadblocks along the path to regaining custody. The mother must be able to prove mental and financial stability, as well as having a safe and secure home for her children.  Although she must have a dependable income, the court cannot refuse custody due to poverty. Wallace says she’s seen mothers able to prove financial stability from monthly disability checks of only a few hundred dollars.

Mothers who do not qualify for any kind of assistance may struggle to earn enough to support their families, as many jobs include background checks that disqualify applicants with criminal charges. Transportation is also an obstacle in this instance, as many women coming out of jail or prison have lost their licenses and must depend on public transportation or the help of others. Losing her license was another obstacle that Robinson experienced, and she is still working to regain it.

If a woman does not have a license and her child is placed in foster care in a different county or state, she may not be able to visit her child easily. In many such cases, the social worker can transport the child to the mother for visitation. Straface said that a children may be declared “abandoned” if their parent has gone six months without any attempt at visiting or contact them, and this could lead to a loss of custody.

Although it is a long road to regaining custody, Straface stresses that the courts want to see families reunited rather than having children grow up in the foster care system. As long as it’s in the best interest of the children to return to their mother, and she has completed court requirements and can provide a safe, stable, and secure life for them, it’s likely that she will be granted custody.

Story, video and graphic by Sarah Feamster