William & Mary Journal of Race, Gender, and Social Justice
When a child’s custodial parent is incarcerated, the child is left to either live with relatives who do not have the legal authority to make decisions for him or to live with strangers by way of the foster care system. This Note identifies standby guardianship laws as a means to better care for children of incarcerated parents by expanding an already existing legal framework. Currently, standby guardianship laws allow custodial parents suffering from debilitating illnesses to grant legal custody over their children to another adult for the length of their incapacity without terminating their own parental rights. This Note argues for expanding the laws’ coverage from parents suffering from serious illnesses to also include custodial parents facing incarceration. Allowing parents, rather than the State, to decide how a child will be cared for while the parent herself is unavailable, is beneficial to the parent, the child, and the State, regardless of whether the parent is ill or incarcerated. This Note explains how switching the inquiry into the child’s placement from social services to the court does not compromise child safety and does so in a way that saves state resource expenditure. Additionally, allowing parents to make the placement decision prioritizes the family unit and allows for a more child-centered approach that meets each child’s unique needs. Neither the State nor the parent has to worry that the child is being inadequately tended to, while the State saves money and parents get to maintain their parental rights. This Note urges all states to adopt standby guardianship laws that include incarcerated custodial parents among those who may designate an alternate guardian for their children.