Caring for a child after a caregiver’s death

When can a parent seek compassionate release?

When the person caring for their child has died or can no longer do it. The rule covers a minor child, and an adult child who cannot care for themselves because of a disability or medical condition (U.S.S.G. § 1B1.13(b)(3)(A)). A judge can treat this as an “extraordinary and compelling reason” — a reason unusual and serious enough — to shorten the sentence.

What changed in 2026?

On September 3, 2026, the Bureau of Prisons dropped its own child-caregiver category (Program Statement 5050.51). The warden will no longer recommend release on this ground alone. But the judge can still consider it.

The person still has to ask the warden in writing first. Then they can file in court once the warden has had the request for 30 days (or sooner if they finish the Bureau's appeals).

What to document now

The court applies U.S.S.G. § 1B1.13(b)(3)(A): the death or incapacitation of the caregiver of your minor child, or of your adult child who can't care for themselves because of a physical or mental disability or a medical condition. Document the caregiver's death or incapacity; your relationship to the child; the child's age and, for an adult child, the disability or medical condition; who is caring for the child now; and your plan for housing, support and care. You still ask the warden first, then meet the 30-day or completed-appeals rule before filing in court.

Below is how the Bureau used to review these requests. It's still useful: a judge will want to see the same kinds of papers.

How the Bureau used to review these requests

Under the old Bureau rules, the request had to include:

• A statement that the caregiver has died or become incapacitated, and that person was the caregiver for the prisoner’s biological or adopted child.
• A statement that the deceased or incapacitated caregiver was the only family member capable of caring for the child.
• The name of the caregiver, the relationship of that person to the prisoner, and a statement that the caregiver is a family member of the child.
• An official copy of the death certificate, if applicable.
• Verifiable medical documentation of incapacity, if applicable.
• Verifiable documentation that the prisoner is the child’s parent.
• Verifiable documentation providing the name and age of the child.
• A statement and documentation of the prisoner’s release plan, including housing and the means to support the child.
• Authorization from the prisoner allowing the BOP to obtain any documentation related to the application.

If the child is in foster care, the Bureau also wanted papers showing the parent could get custody right away. The old Bureau policy treated a caregiver as incapacitated after a severe injury or illness that left them unable to care for the child.

What did the prison review committee look at (before 2026)?

If the warden did not deny the request right away, a committee — usually the unit manager, counselor, and staff such as social workers, psychologists, or doctors — gathered more information:

• A general description of the child’s mental and physical condition.
• A description of the child’s care, both prior to the prisoner’s arrest and during incarceration.
• Letters or documentation indicating that the deceased or incapacitated caregiver was and is the only family member caregiver (besides the prisoner) capable of caring for the child.

What did the warden weigh (before 2026)?

The warden considered:

• The prisoner’s offense, current age, age at the time of the offense, release plans, institutional adjustment, disciplinary infractions and personal history.
• Length of sentence and amount of time left to be served.
• Comments from victims.
• Whether release would minimize the severity of the offense.
• Whether the prisoner’s history includes violent acts before or during incarceration.
• Whether the prisoner had drugs, firearms or other dangerous substances in the home while caring for the child prior to incarceration.
• Evidence of the prisoner’s care of the child before and after arrest, including during incarceration.
• Evidence of child abuse.
• Evidence of whether the prisoner has ever lost custody of a child, is deportable, has received public funding, had a job, or engaged in institutional programming.

What happened if the warden approved (before 2026)?

The warden also considered the child's best interests. An approval went to the Bureau's General Counsel, then to the Director. If the Director approved, the federal prosecutor asked the judge to reduce the sentence to time served.

Today the request goes to the judge instead. If you want help gathering the papers and writing the motion, book a consultation.

Going to court

You do not need the Bureau's approval. The person can file in the court that sentenced them 30 days after the warden receives the request, or sooner if they finish the Bureau's appeals (18 U.S.C. § 3582(c)(1)(A)). The judge makes the decision.

Two arguments no longer work. A later sentencing change that Congress did not make retroactive is not a reason (Rutherford v. United States, May 28, 2026). A claim that the conviction is wrong belongs in a 2255 motion, not here (Fernandez v. United States, May 28, 2026). Good conduct in prison cannot be the only reason (28 U.S.C. § 994(t)). And fitting a category is not a guarantee: the judge still weighs the whole case.

• Who may qualify
• The process