In Wisconsin, children with incarcerated parents often face compounded challenges that extend far beyond the courtroom. The emotional toll of separation, coupled with the instability it can create in housing, education, and caregiving, frequently manifests in behavioral and mental health concerns. These children are the disproportionate majority in CHIPS and JIPS proceedings, and their trauma, often unspoken, can echo across generations.

As practitioners, we must recognize that parental incarceration is not merely a background detail – it is a pivotal factor that shapes the child’s experience, resilience, and long-term outcomes. Our advocacy must reflect both the legal realities and the human dynamics of our clients.

The Legal Landscape: Where Mental Health Meets Children’s Law

Wisconsin’s statutory framework recognizes the importance of mental health in child welfare proceedings.

Under Wis. Stat. section 48.01(1), the legislature explicitly states that the purpose of the Children’s Code is to “promote the best interests of the child” and to protect children whose “physical or mental health and welfare” are at risk.

Similarly, Wis. Stat. section 938.01(2) emphasizes rehabilitation and care for juveniles whose behavior may be rooted in trauma, instability, or unmet mental health needs, stating the legislative intent is “[t]o equip juvenile offenders with competencies to live responsibly and productively, ... provide an individualized assessment, ... and respond to a juvenile’s needs for care and treatment, yet the law can only go so far.^[1]

The lived reality for many children – especially those with incarcerated parents – is far more complex.

The Hidden Sentence: Children of Incarcerated Parents

Wisconsin has one of the highest rates of parental incarceration in the country, with approximately 58% of incarcerated women and 47% of incarcerated men reported as      parents of minor children. When a parent is incarcerated, their children often experience a secondary sentence that is a cascade of emotional, psychological, and economic consequences that can last a lifetime, according to the National Institute of Justice.

The Wisconsin Supreme Court has acknowledged the profound impact of parental incarceration in child welfare cases in State v. Bobby G.^[2] The Court recognized that incarceration alone is not grounds for termination of parental rights, but it can be a significant factor when it affects the parent’s ability to meet conditions of return. This case underscores a difficult truth: incarceration disrupts not only the parent’s life, but the child’s sense of safety, attachment, and identity.

The Mental Health Toll: Trauma That Echoes Across Generations

Mental health concerns often emerge early for children navigating the loss, stigma, and uncertainty associated with parental incarceration. Many experience symptoms consistent with complex trauma, including hypervigilance, emotional dysregulation, and difficulty forming trusting relationships.^[3]

Wisconsin courts are increasingly aware of these dynamics. In Dane County DHS v. Mable K.,^[4] the Court emphasized the importance of considering a child’s emotional and psychological needs when determining best interests. This decision reflects a broader recognition that mental health is not a peripheral issue, but rather the central to a child’s stability and long‑term well‑being.

Still, the system often struggles to meet these children’s needs. Access to trauma‑informed therapy, culturally competent care, and stable placements remains inconsistent across counties. And for children with incarcerated parents, the emotional burden is compounded by shame, secrecy, and the fear of repeating the same cycle.

Three Practical Tips for Working with Children of Incarcerated Parents

Attorneys who represent children in CHIPS, JIPS, or delinquency matters are uniquely positioned to interrupt generational trauma, and to attempt to close the gap in meeting those needs. Below are three strategies that can make a meaningful difference:

Prioritize trauma-informed advocacy. Children with incarcerated parents often present with behaviors that are trauma responses, not clear or defined defiance. Advocate for mental health evaluations under Wis. Stat. section 48.295 or Wis. Stat. section 938.295, and push for services that are truly trauma‑informed. Do your research on the providers and services that are recommended, as there is no cookie-cutter response or treatment to handling these matters, and there should be no copy-and-paste disposition. When appropriate, especially in juvenile dispositions, request that the court consider the child’s trauma history in dispositional recommendations.

Support safe, meaningful parent-child contact. Research consistently shows that maintaining appropriate contact with an incarcerated parent can reduce a child’s anxiety and improve long‑term outcomes. When safe and feasible, advocate for visitation or communication plans that support the child’s emotional needs. If need be, refer to Wis. Stat. section 48.355(3), which requires courts to consider the importance of family relationships in dispositional orders. A parent’s incarceration status is not a reason alone to not allow or facilitate safe and meaningful contact.

Be the voice that names the trauma. Children often cannot articulate the grief and confusion they feel. Attorneys can help by ensuring the court understands the emotional impact of parental incarceration. When appropriate, especially as a guardian ad litem, incorporate mental health reports, school records, and therapist statements into the record. Also request that the court consider the child’s trauma under the “best interests” factors in Wis. Stat. section 48.426(3).

They Need Our Support

The children who we represent are not defined by their parents’ mistakes or the circumstances of their birth. They are resilient, hopeful, and deserving of a system that sees them fully, mind, body, and heart.

As practitioners, we have the power to interrupt cycles of trauma and help build a future where children are supported, not stigmatized, when their families are touched by incarceration. Wisconsin law gives us the tools, compassion gives us the purpose, and the statistics give us the reason to do better.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

[1] Wis. Stat. section 938.01(2), (2)(c), (2)(f). ↩

[2] State v. Bobby G., 2007 WI 77. ↩

[3] See About Children’s Mental Health, CDC.gov, June 9, 2025. ↩

[4] Dane County DHS v. Mable K., 2013 WI 28. ↩