Custody After Innocence

The prison population in the United States is approximately 2,217,000. Female prisoners account for 9.3% of the US prison population.[1] Women are the minority in prisons all over the world, but their numbers steadily grow each year at a rate faster than the male population.[2] In many cases, the victim that emerges from female imprisonment is the child of those imprisoned.[3] As of 2010, more than 800,000 of the then nearly 1.5 million US prisoners were parents of children under the age of 18.[4] Of those children, 22 percent were under the age of four.

It is fairly common for women to lose custody of her children even after just a short amount of time in prison.[5] Some countries make arrangements that allow for babies or small children to actually live in the prison with their mothers until they reach a certain age.[6] This is not the case in all US prisons. Countries like Russia and Kazakhstan require that children live in buildings that are attached to prisons, which allow the mothers to have scheduled, regular access.[7] In other countries there are specialized units for inmates who have children. In these units, the women and children are allowed to live together.[8] In Illinois, the Decatur Women’s Facility has a Moms and Babies program where the child can live with the mother in prison if the mother is the primary caretaker.[9] To qualify for this program the mother must be within two years of being released from prison.[10]

Most countries that provide accommodations for children to live with their imprisoned mothers also set age limits. [11]

The Bangkok Rules are the minimum standards the United Nations propose for female prisoners. They were proposed in December of 2010 due to the overwhelming lack of support for female inmates throughout the world.[12]

In the United States there is a very different life for female prisoners.

In Illinois, as of January, custody is now referred to as allocation of parental responsibilities.[13] Visitation is now known as parenting time.[14] . “Alexandra Roffman of Chicago Legal Advocacy for Incarcerated Mothers (CLAIM) emphasized, “People retain all rights to their children unless those rights are terminated.”[15]

Roffman explained, “When I bring cases into court on behalf of people who are incarcerated it is usually trying to get visitation.”[16] Roffman posed the hypothetical of a husband filing for divorce while the wife is in prison. It would be very difficult to have any kind of joint or shared parental responsibility of the child because the court will look at the situation and say “you’re incarcerated, you can’t possibly help out…”[17] Custody orders in Illinois last for two years, but visitation can be changed at any time. CLAIM advocates for as much visitation as possible to preserve the parent and child bond.[18] Roffman says that allowing visitation once a week would make it easier for the mother to be granted shared custody if there is a divorce.[19] Roffman further explained, “If they have had such regular contact with the kids, it would be an injustice otherwise.”[20]

Roffman emphasized the importance of visitation with children and maintaining that parental bond, adding in regards to visits, “kids are going to ask anyway.”[21]

Guardianship comes into play when a woman gives birth in prison. These are for short term guardianship and are revocable by either parent.[22] “[These] last for a year and are just basically a piece of paper that say ‘I appoint you guardian of this child,’” Roffman noted.[23] These temporary guardianships make it possible for a relative to care for the child up if the mother gives birth in prison.

Temporary Guardianship is instantly revocable. Once the mother is released from prison, she may revoke guardianship and resume caring for her child.[24] Court appointed guardianship is not as easy. This happens when the guardian appears in court and petitions to be the guardian of the child. The mother must also appear in court and petition to have it undone. This gets tricky, as many judges are hesitant to change a child’s living situation, especially with mothers who are just coming out of prison.[25]

Exoneree Kristine Bunch was six months pregnant when she was imprisoned. The judge had told her that her son would become a ward of the state.[26] She was determined to make sure that this was not so. She spoke to a lawyer who informed Bunch that unless there was a court order, her son would not just become a ward of the state.

Bunch signed temporary guardianship of her son over to her mother. Her brother made sure that Trent was there every two weeks.

The prison that she was at had a summer camp that children could come to for a week every summer. Trent was able to come to holiday parties.

The prison in which Bunch was incarcerated had a Family Preservation Unit that allowed her to have visitation in a more informal setting. The room was more cheerful and less institutional.[27] Illinois prisons vary with regard to where families can have parental time. Many just have regular visitation rooms for parents to meet with their children.[28]

Around the time Trent was five or six, he began to ask questions about where his mother was living. When he was younger, he believed that she was at school.[29] The women’s prison was set up to look a bit like a college campus. Women prisoners wore their own clothes rather than the typical khaki uniforms.[30] Once Trent learned how to read on his own he was able to navigate signs. [31]

There were times when Trent didn’t want to visit his mother. He didn’t want to go through the pat downs, and would not come into the room to see his mother.[32] Bunch’s brother suggested that she try reading the Harry Potter series. Trent was a huge fan of the books and talked about them endlessly. Bunch’s brother sent her the books and she began reading them. Trent couldn’t resist talking about them and started writing, talking on the phone, and visiting again.[33]

When Bunch was exonerated and released she was able to resume her parental rights. She had never given her mother permanent guardianship. [34]However, she found that things were not that easy. As it turned out her mother had been struggling with hoarding issues and no one had told Bunch.[35] At one point while Bunch was in prison her brother had asked her to sign guardianship over to him instead of her mother.[36] He did not want to badmouth their mother so he had not told her why he wanted the temporary guardianship. Bunch moved herself and Trent out of her mother’s home. [37]

Trent was on probation at school and was only going to school half day. He had been on ADHD medication since elementary school and required counseling. To prove to Trent’s doctors that she had the authority to make decisions, she needed to prove that she had custody and never had lost custody. [38]

Her mother would not hand over the copies she had so Bunch had no choice but to return to the very place she had spent 16 years for a crime she did not commit. Three days after being released, Bunch had to go back to the place she had imprisoned in to retrieve paperwork proving that she had legal custody of Trent.[39]

Bunch put Trent in a residential home in order to try and get him back on track. She had to get rides to visit him for their family counseling sessions because she only had a learner’s permit at the time.[40] Everything seemed back on track for a little while after Trent had left the residential home but eventually he decided he felt like he couldn’t leave his grandmother.[41] He felt that he owed her and had a loyalty to her. He moved back in with his grandmother.[42]

Bunch still has contact with Trent. They talk but Bunch knew that she couldn’t enable him anymore and that she needed to focus on her own mental and emotional health as well.[43] Rebuilding these relationships take time. Often it has to be a gradual process.[44] It is a big change for everyone and everyone needs time to figure out what relationship will work best for everyone involved.


[1] World Prison Brief, (last visited Feb. 2, 2016)

[2] Penal Reform International, (last visited Feb. 2, 2016)

[3] Id.


[5] Penal Reform International, (last visited Feb. 2, 2016)

[6] Id.


[8] Id.

[9] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).

[10] Moms and Babies Program,, (last visited Feb. 17, 2016).

[11] Laws on Children Residing with Parents in Prison, August 2014, The Law Library of Congress, Global Legal Research Center, 1

[12] UN Bangkok rules on women offenders and prisoners: short guide, 4

[13] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).

[14] Id.

[15] Id.

[16] Id.

[17] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).

[26] Interview with Kristine Bunch (Feb. 19, 2016)

[27] When Will Kristine Bunch Be Free?, Indianapolis Monthly, (last visited Feb. 20, 2016)

[28] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).

[29] Interview with Kristine Bunch (Feb. 19,2016).

[30] When Will Kristine Bunch Be Free?, Indianapolis Monthly, (last visited Feb. 20, 2016)

[31] Interview with Kristine Bunch (Feb. 19, 2016).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Interview with Kristine Bunch (Feb. 19, 2016).

[37] Id.

[38] Interview with Kristine Bunch (Feb. 19, 2016).

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Telephone Interview with Alexandra Roffman, Equal Justice Works Fellow, CLAIM (Feb. 17, 2016).


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