A hypothetical based on a conversation I had with a friend who has a relative in a really nasty custody battle similar to the one described below:
Hypothetica had a child, Little Susie, with a guy we’ll call B.D. (for Baby Daddy). B.D.'s not an absolutely evil sort- no serious trouble with the law or anything- but he’s basically a self centered immature fratboy who ran off not long after Hypothetica gave birth and always liked the concept of having a kid better than having a kid. He sent presents and occasional support (nothing reliable) but was never really there for the kid in any regular manner.
Years pass, Little Susie is a few years old, and B.D. has had almost no contact for a couple of years. Part of this is due to Hypothetica not wanting him to, part because he’s still a self centered immature fratboy douche. Hypothetica meets and marries a guy we’ll call Mr. Right who loves Little Susie and wants to adopt her.
Meanwhile, B.D., who’s now through college and making good money and marginally more mature but no less self centered, has decided he now wants a relationship with Little Susie. He’s even willing to pay back child support and the like, and he wants to be a part of her life. Hypothetica doesn’t want him to because he’s never been that interested before, Little Susie has bonded with Mr. Right, and she knows that while B.D. might really and truly be repentant and sincere in wanting to be a dad this week she also knows that this could all change next week when he decides he wants to be a professional golfer or knocks up a lap dancer he just started dating and decides that kid will do; he’s the type who’ll probably always miss birthdays and planned visitations and then try to make up for it with a 7 foot tall stuffed Snoopy at Christmas and by putting Little Susie’s picture everywhere in his house (though don’t ask him to name her schoolteacher or any of her favorite books or cartoons).
Also the chance B.D. has really turned over a new leaf and really wants to make up for lost time, but the chances aren’t very good. B.D.'s a self deceiving bullshit artist after all. However, he has nothing like felonies or anything that would make him a demonstrably terrible person other than periods of deadbeat dadness which he’s willing to make right financially.
So the question: is it possible that Hypothetica and Mr. Right could legally force B.D. to relinquish his paternal rights? I’m not asking about could they stop him from having any sort of custody and I’m not asking about the ethics of either side, but can somebody who doesn’t have a criminal past be forced to allow somebody else to adopt his (or her) child?
No medication is wagered on this, I’m just curious.
In my state, yes, it’s absolutely possible for Hypothetica (but not Mr. Right, as he has no standing) to file suit to terminate B.D’s parental rights, if they can convince a judge or jury and attorney ad litem for the child that it’s in the child’s best interest to do so and that there is clear and convincing evidence that the relationship should be terminated. Given the facts that you cite it’s very unlikely that a judge would do so, since B.D. is willing to get current on his arrears, has an interest in the child’s life, and so on. Termination of parental rights is the “death penalty” of family law, and courts are loathe to do it if even a half hearted relationship exists between the parent and the child. Hypothetica’s better bet would be to file suit or contempt against B.D. for his arrears in child support and offer to drop them if he will voluntarily relinquish his parental rights (which a judge might agree to if Mr. Right is volunteering to be the white knight and adopt the child), but if B.D. wants to continue to be a partial instead of complete screwup, it’s unlikely that his rights will ever be terminated.
Is it legally possible for guardianship/custody of a minor to be given to a step parent in preference to a biological parent when the petition is contested (which ion most circumstances would mean a loss of parental rights anyway)?
How often can it happen.
Can you be barred from seeing your child
How often does it happen
Exact answers will vary according to jurisdictions, but a general assessment can be given about countries which follow a variation of the “best interests” tests i,e most common law countries.
Yes it is legally possible and there are many precedents on record
It is very very rare, and usually the result of wholly exceptional circumstances, which palpably does not seem to be the case here. He is making good money, no hint of criminal conviction or problems and he has been involved, just less.
Yes it is possible
Even rarer then 2. Courts generally take a narrow view of children being prevented from developing familial bonds especially with biological parents outside of extreme situations when there could well be a clear and present danger to the childs well being. Not the case here.
I am a Lawyer and this is not to be construed as legal advice. Your friend needs to contact an established family practitioner ASAP.
Something I neglected to mention: in my jurisdiction, in addition to showing that the termination would be in the best interest of the child, the petitioner seeking termination must show that certain statutory grounds have been met that show that the parent is unfit and that the relationship should be terminated, such as abandonment, neglect, abuse, lengthy imprisonment, failure to pay support for one year, etc. It’s doesn’t appear that Hypothetica can allege any of these grounds against B.D., and even if she could allege nonsupport it’s not necessarily a given that a judge would terminate B.D.'s rights against his will - court’s don’t usually get rid of a parent with some interest in the child’s life just because there’s a potentially better parent waiting in the wings.
Yes, you did say you weren’t asking about the ethics of the situation, so sue me. I actually play the role of Mr. Right in your scenario. I’m married to Hypothetica (she doesn’t like me to call her “Hypo”) and B.D. is very real, although not as bad as you describe. Even then, I blanch at the idea Mr. Right should have any power to adopt away a child from B.D.
With out a good lawyer BD could loose his paternal rights. In our family BD never stopped being selfcentered. The judge look at what waas best for the child. Our family’s story was a lot longer so I will not go into it.
**Pravnik **and AK84 have pretty much covered the bases for you here. There will be some variations in the details in different states, but yes, it is possible to terminate parental rights over the objection of a natural parent. It is not an easy thing to do, and does not happen very often. On the facts presented, it seems an unlikely result…though in my state, it could happen if B.D. had no contact with the child for a year or longer.
You may not be interested in the ethics but the question has been answered and it needs to be said because this is probably also how a judge would see it… Hypothetica needs to grow up. She chose to have a kid with him, she has to live with it. Finding someone she thinks is better isn’t grounds for taking the child’s parent away.
And this wouldn’t look good for the mom in court: “B.D. has had almost no contact for a couple of years. Part of this is due to Hypothetica not wanting him to” She should be bending over backwards and begging him to see the kid.
I see this question a lot “I found someone better, can I make him the dad?” or “Can I take the kid and move to Alaska to be with the new guy?” That attitude is also self centered and usually slapped down in court. And if dad is truly trying to be a decent parent, could bring into question whether mom should have custody to begin with.
It might be worth Hypothetica looking into whether it’s possible for Mr Right to get parental rights in addition to the biological parents. This is possible in the UK and is a simple court process as long as all parties are in agreement, but I don’t know about where you live.
This is the crux of the issue - parents are parents and have certain rghts. A child is no up for grabs for whoever has the best bid. Mm chose who to have a child with 9 months before the child was born. Unless a parent is horribly unfit, nobody’s going to remove them from the role. Fortunately, parents don’t have to pass an exam - or half of them would lose their kids. BD may be a “D” parent, but he’s not an “F” and no court is going to step in and kick him to the curb. So Hypo will have to learn to live with the situation.
Fubaya has pointed out the other side of the coin. In many of these he-said-she-said situations, we will hear one side of the story. Often there are two sides, and they differ significantly. Judges that hear these cases hear both sides and wonder if they are both describing the same situation. Usually the truth lies in he middle.
First mistake Hypo should have gotten court-ordered support. (It sounds like she did not). Then BD’s lacksadaisical attitude to support would be documented. A journal documenting time and place of each missed appointment, ddisappointment, etc. might carry more weight. But… it still boils down to - unless BD is demostrated to be a physical or psychological danger to the child, he’s going to stay the BD.
Ok I qualified and began practice in England and Wales and this is news to me. Granted I did little family law, but outside of parents powers to assign persons in loco parentis I cannot really think of any example.
Usual disclaimer in place here: nothing said is being taken as legal advice and this isn’t even a case I’m directly involved in, just a matter of curiosity.
I’ve only known personally of one case where parental rights were terminated and it was the child’s mother, which shows you how bad she was (since IINM mothers are far less likely to lose custody or parental rights than fathers). In that case the mother was a nightmare- boozer/loser/user with neglect and endangerment in her past and no attempt or apparent desire to have contact with the child except as blackmail leverage, and the judge saw through that. They terminated her parental rights during one of her lengthy prison stays and after a proven extortion attempt.
That’s why I was wondering about somebody who isn’t necessarily a great guy but isn’t “movie of the week” evil either. Also, in this particular case the guy had a great excuse for no contact for a year- he was in Iraq (or maybe Afghanistan- in the war in any case) with his National Guard unit- which even if the probability is high he wouldn’t have had contact anyway I can’t help but think that would weigh in his favor.
That’s what I was thinking. It’s not at all obvious to me why a step parent adopting their step kid would somehow negate any of the biological parents.
Er, first of all, what no one has said here is that what is supposed to be the crux of the matter is the CHILD’S best interest.
I understand why the mom would want to make that gesture (adoption) to the man who is willing to step up and be a father to the little girl. And I understand the fear that the baby daddy will set the child up with expectatipons, and then disappoint her anew, even worse.
But I think that knowing that your natural parent cares that you’re in the world, that they think about you, and maybe they’re kind of a loser as far as daddies go but at least they try – that does mean something to a child. I think it can mean a lot.
A person should think long and hard before attempting to terminate anyone’s parental rights; and then they should sit down and think some more. Termination is NOT a weapon you use to beat a sketchy parent over the head with, to show them, “See? I think you’re a bad parent, and the JUDGE agrees with me. So there.” People who use it that way have a special place in hell waiting.
Termination would mean that she doesn’t EVER have to let him see his daughter again. That is a pretty cold thing to do to a parent, and I think it should be reserved for those who are clearly evil, not just lame.
In my state, if a third party (non-parent) files for guardianship against the wishes of the mother, even if in those proceedings they are asking for termination of the mother’s parental rights, the mother has no right to a court-appointed attorney if she cannot afford one.
And you know what, even if there is no allegation of abuse or neglect, they can still get custody. If not termination.
100% agreed. The possibility of future disappointment is nothing compared to the realization that your dad gave up and let you go. Even worse that your mom forced him out to serve her own need for revenge.
There’s nothing wrong with a kid having three adults who care and want to make sure the kid is happy. Why not give bio dad another chance? He’s grown up and matured enough to want to pay the arrears and become involved. I’m not sure how anyone could think that’s a bad thing.
Based on several years experience with a County Child Support system, I agree with brujaja (and several others here) on these points:
Under these circumstances, you are extremely unlikely to be successful in convincing a judge to terminate BD’s parental rights.
It is morally wrong for you to attempt to do this, given the circumstances you described. You have no business depriving this child of the love and affection of her father (such as it is). Even if he isn’t a particularly great or attentive father, he is still an additional person to love and care for her – and most kids can use as many of them as possible.
You seem to be looking at this from the parents viewpoint – trying to punish the father or reward the step-father, or both – instead of thinking first of the child and what’s best for her. Stop that!
This sounds harsh, and you probably are not thinking that way. But that is what it amounts to for the child. Re-think this.
P.S. Given the fathers past record, it’s probably advisable to calmly prepare her for some disappointments from him. Or be prepared to deal with her when they happen. Just gently explaining that “people can’t always keep their promises” and even (when she’s older) “some people make promises easily, and don’t always try that hard to keep them” can be helpful. But even occasional (or even frequent) disappointments are minor compared to the value of a parental relationship.
An anecdote on the difficulty on terminating parental rights …
Some neighbors of my Mom’s were 50-ish salt-of-the-earth working class folks. Nice as could be. They had 2 kids, one of whom turned out to be a total loser. At age 18 she popped out twins. At age 22 the meth lab she was operating with her boyfriend *du jour *blew up. In the ensuing house fire the twins, then age 4, were severely burned. The parents were uninjured since they ran away when the fire started.
The twins survived, after many hundred K of public money spent on medical care. Both are pretty disfigured. The grandparents, Mom’s neighbors, stepped in to help. The parents didn’t want any interference even though they pretty well neglected the kids in their daily drug-addled lives, both before and after the fire.
It took years to get the courts to come around to giving the grandparents custody, and even that was joint with the losers allowed to take the kids half time. Which they did just often enough to keep their rights alive.
The neighbors finally got the parental rights of the losers terminated after the losers were arrested at a drug buy while the kids, now 12-ish, waited out in the car.
In AZ at least, the biological parents have almost unassailable rights to ownership of their offsping.
Can someone tell me upon what fact the idea that a child needs his biological parents is based? Or even what law? It just seems to be something taken for granted, to the point that you are assumed to be immoral if you disagree.
I can look at this from both the child and the parent’s perspective, but I can’t figure out where that premise comes from. In my experience, it is quite often false. I know plenty of people who would have done better if they had better parents.