Emancipating Innocence: Redefining Custody Norms For Children Of Incarcerated Mothers

Alisha Sharda, Christ (Deemed to be University), Delhi NCR

ABSTRACT

Incarnation is based on punitive and retributive jurisprudence of crime. The focus has traditionally been on punishing individuals who have committed crimes as a means of retribution and accountability. However, in blindly following this traditional approach of punishing the individuals, the dependents of the guilty also suffer. The young child of the incarcerated parents suffers the most as the child may face, trauma, familial disintegration, intergenerational cycles of incarceration, etc. This research paper specifically intends to investigate the complex and often overlooked issue of custodial norms of children of incarcerated mothers, thereby challenging the traditional perspectives and advocating for a dire need for re- evaluation of the current practices. This paper is quadruplicated. Firstly, it dissects the extent to which these norms affect children in the long term, considering both the psychological and sociological ramifications. Secondly, it analyses the concepts of 'caged childhood' and 'clipped wings', trying to discern the better approach under current circumstances. Thirdly, in this, the principle followed in examining child custody cases- ‘the best interest of the child’, also comes under scrutiny, decoupling its theoretical significance from practical interpretations and analysing its effectiveness in an ambiguous context that brings together questions of justice, child rights and constitutional mandates Fourthly, as extensive research exists on the consequences of parental incarceration, this paper takes a novel approach by shifting the focus from the punitive aspects to the rehabilitative and supportive measures necessary for these children. Conclusively, this paper aims to contribute to a more enlightened and humane discourse surrounding this critical issue, offering a roadmap towards a future where children of incarcerated mothers can thrive, unburdened by the harsh constraints of current custodial norms.

Keywords: Incarcerated mothers, custody, best interest of the child, child rights, caged childhood, clipped wings.