Why We Need Parental Rights And How We Might Protect Them?

Here’s a recent story that illustrates why legal protections for parental rights are important.  This is one of those cases where it’s hard to know what the truth is.  One side has told its story to the press while the other side has not.   But even so, there’s much to learn.

Kristy Gaffney became pregnant as a result of a relationship with a man she had met on-line.   She says that she thought he was a single man named Ed Dupont.  In fact, he was a married man named Emmitt Dippold.

After the baby was born, the man had Gaffney sign some papers, which (according to Gaffney) she did not understand.   She was told ensured that Dippold would be recognized as a father.   That’s not what the papers actually did, though.  What they did was consent to adoption of the child by Dippold and his wife.   Somehow Gaffney only learned about the adoption when it was in its final stages and she sued to have it overturned based on fraud.

This is where I think parental rights become important.   Gaffney was clearly a legal parent to the child.   Thus, this isn’t just a fraud over title to a car or a bank account.   What was taken from her were her parental rights.   Those are more serious, and hence a court should take allegations of fraud more seriously.  In this case, the court did indeed find fraud and so vacated the consent to adoption.   (This determination is being appealed.)

This case makes me wonder about how easy we make it to give up parental rights.   Should it be as simple as signing a couple of forms?   How clearly do the papers need to say what it is you are doing?   Do we need someone–a judge or a case-worker or some neutral party–to actually ask a person giving up rights if they understand what they are doing?

From what I can tell, the general process used here–simply signing papers out of court–wasn’t the problem. It was the particular representations that were made.  I wonder about whether that means there are inadequate safeguards generally.

Keep in mind, though, that safeguards have costs.   Requiring a judge to review consent to adoption will make it more time consuming and expensive.  Indeed, it’s probably too far in the other direction.  But at least we could require that the forms be clear and reflect an expressed intention to surrender parental rights.

I confess ignorance here.  I know that, as in so many other things, practice as to surrender of parental rights varies state-to-state.  I do not know the range of methods used to protect parents, however.  Anyone who wants to chime in on that score would be most welcome to do so.

And two final observations.   First, if Gaffney’s version of events is true, then she you might say that she was essentially duped into being a surrogate for the Dippolds.   She had a baby that they intended to take as their own.   Second, if the adoption is invalidated, then this child’s parents are Dippold and Gaffney and one might generally expect that they will share responsiblity for raising the child.  That hardly seems like a picnic.




16 responses to “Why We Need Parental Rights And How We Might Protect Them?

  1. First I was jonzing for you to write something. Glad your back.

    Now to the post. I am always saying how all people deserve the right to a court approved adoption if their genetic parent(s) do not want to or cannot raise them themselves. I’m always saying that as much as I dislike elements of adoption it is designed to protect all parties from being taken advantage of. Court approved adoption attempts to make sure that the people relinquishing the child are in a position to do so: How did they come into possession of the child, did they buy the child or kidnap the child? Genetic parenthood is not a relationship that can be bought or sold so the courts can be confident that everything else aside, the child was not trafficked into that relationship – its the proper starting point for courts to place the right to relinquish with a genetic parent or someone that came by their non-genetic parenthood in a legal court approved way. And then the multi-step process in court that a parent has to go through in order to transfer their obligation for raising their child to someone else is indicative of some one who is aware of what’s going on. It also shows that the proposed adopting parties know what’s going on. Then the court makes sure that the parents are not paid to relinquish the child or that the adopting parties are not being paid to take the child. I thought that this was ALWAYS the case in adoption and that it was not possible to privately contract away your parental obligations!? How could a private contract to give away your child be enforceable?

    It makes no difference whether or not raising their child together will be a picnic its what their child deserves, what their child is owed and its what they will have to do to meet their respective parental obligations. I do wonder what it is that she thought she was signing? From what you wrote it sounds like she thought she was signing the VAP so that he’d be recognized as the father because he is the father. He made the kid and the kid is entitled to his support as well as the support of his mother. The kid is not entitled to the support of his step mother except while she’s married to his father.

    What a nasty story I agree it should not be that easy to relinquish parental obligations which is what is wrong with gamete donation. Gamete donors never even get recorded as having offspring when their offspring are born its as if reality does not happen for them and their kids.

    • I’m glad to be back. Thanks.

      I was going to start by saying that insisting on in-court surrender of parental rights (which would certainly go some distance to solving the problem) is likely to be prohibitively expensive, but then it occured to me that there is (I think?) virtually always a court proceeding to complete the adoption anyway. If this is the case then perhaps it would not be so much more expensive to have the termination of parental rights in court as well.

      But that makes me think of a different issue. Lots of times you want to do this quite quickly at the very beginning of the child’s life. Let’s assume everyone really is totally on board with the adoption–you can see why it would be better to do it right away. This desire might conflict with the in-court desire, I suppose.

      I’m putting aside the gamete donor issue for the moment because I really only want to think about adoptions. The goal, it seems to me, is to devise or settle on some procedure that is workable–economically and in terms of time–but ensures that the woman or people surrendering their rights have understood what they are doing. It’s about balance. And this is also one of those moments when it seems like you have to say that in all likelihood any system will fail occasionally–you just want to ensure that it fails very infrequently and you you might want to think about which way it fails when it fails. What I mean is does it fail as the system did here (woman who did not mean to give up child gives up child) or the other way (woman who wants to give up child has to work harder to give up child.) Seems to me you want errors to fall on the latter side of the divide.

      Finally, this is (if the facts are as given) an ugly case involving bad actors. Bad actors–people aiming to corrupt the system–are another sort of problem you want to keep in mind.

  2. Julie,

    What I know is that some (all?) states allow for two different TPR forms. One an identified surrender that lists the adopting parents that voids the relinquishment if they don’t adopt and one is just a relinquishment of rights to the licensed agency/attorney/court depending on the state.

    Being the history buff I believe WA back in 1939 did an emergency change of law to require the judge to hear the surrender with the mother present to determine the proprietry of the relinquishment. That changed in the late 60’s early 70’s to some lower person in the courts if I remember correct. I am one who thinks it should be done in front of a judge (in chambers) – it should not be easy to relinquish your rights. It should be conducted that way to ensure it is done correctly.

    Some states allow relinquishment within 24 hours of birth – regardless if the mother had a c-section and was still doped up – valid – no revocation period either. The social worker is there handing the papers over to be signed as soon as humanly possible. Ripe for abuse even with a natural birth – let alone a birth that included drugs or a c-section. I look back at my natural drug free delivery and at 24 hours I could not have signed anything with a clear mind – sheer unadulterated exhaustion and hormones exploding – I couldn’t even name my son by then.

    • I understand the impetus for a surrender within 24 hours system (you get the child relocated early) but I also share your concerns. The thing is, as I sort of suggested above, that kind of system will work fine some of the time. But sometimes it will not work well and you can see the sorts of errors it will generate. I’m sure there’s a huge body of work out there that addresses this–it’s just not one I’m familiar with at all. Do all surrenders need to be in court? Is it enough that they are before some neutral party who explains what is going on?

      In general I’d be really uneasy with a system that allocates parental rights based on signing pieces of paper in unsupervised settings. There does seem to be an inevitable error rate where for whatever reason people do not understand the paper. You could make the same point with similar concerns in the reverse situation where men sign voluntary acknowledgements of paternity (VAPs) I think.

  3. A number of states do require that signed parental consents for adoption be given before a judge, and I actually think that’s perfectly reasonable. Here’s a breakdown by state: http://www.abcadoptions.com/consent1.htm

  4. When I signed a prenuptial I was required to have my own attorney. Seems absurd that it takes more effort to sign away an interest in your spouse’s property than it does to sign away your parental rights.

    • What a great point. Indeed it does. Not all states require counsel for prenups, of course. In fact most don’t. But still–great point.

      This is off-topic (and following your example) but the thing about a pre-nup is that the attorney you have is only your agent. They are supposed to do what you tell them. If you are deeply in love and cannot believe that your soon-to-be-spouse would ever take advantage of you, then you probably aren’t going to listen to the attorney who tells you the agreement you are signing is unfair. I do wonder how often the independent attorney can effectively persuade the client to bargain to protect her/his rights.

  5. Julie,

    Hospital bed surrenders are really common – more common than any other. The mother can have the exact same attorney as the adopting parents have and/or the agency attorney who of course is paid by the adopting parents – or she can just have a notary / social worker from the agency who is also paid by the adopting parents. They also pay for her “counselling”, her expenses etc. This is not just agency adoptions but attorney adoptions as well.

    No one NEEDS to surrender a child at 24 hours. No one NEEDS to have the adopting parents in the delivery room and cutting the cord and holding the baby first – all of that can and/or does create a situtation where IF the mother wants to parent can be guilted into surrender after they have courted her and gone to all her doctors appointments etc. Not all mothers are guilted / not all mothers are strong enough at that point to voice their wishes…

    Adoption has to be done in a different fashion – right now the ethical lines are incredibly blurry…

    There are forms you can sign giving the adopting parents temporary custody while the mother recovers and the wait time expires – there is NO need to rush the final surrender.

    • It’s probably true that there is no need for the things you list here. What I wonder about is this, though. IF the mother is going to agree to the adoption in the end it seems to me that it might be better to have the adoptive parents around from the get go. I think those first moments of life matter–in the family mythology if nowhere else. Being able to say “when you were one hour old….” and that sort of thing. IF, on the other hand, the mother is unsure or reluctant, then giving her more space/time is important. You’re quite right that having the adoptive parents around creates pressure.

      I do believe that some people are sure about wanting to give a child up for adoption and know themselves well enough to be confident. Perhaps the question is what is the most common scenario. IF (and I say this only as a hypothetical–I do not believe it is true) you told me that 95% of all prospective adoptions fell into one category or the other (sure/uncertain) then this would help me set up a decent set of rules.

      To put this slighlty differently, extra time is valuable to those who are trying to figure out what to do. How common is that? And how would we know?

      This is slightly different (at least in my mind) from saying that the fact that you are surrendering rights must be clear. That I think is an absolute. It must be clear, whenever you have it happen. But how much process you need-how much distance, how much space–really might turn on what the typical case is. I don’t know, myself.

      It’s also worth acknowledging that even a very good system can be corrupted by determined bad actors and that’s the allegation about the people here. So this is a special case anyway.

  6. certainly there is no benefit to be had by the infant; who will be under the care of nurses during that time anyway, not the adoptive parents

    • Where my kids were born the parents (or the people in the room, whether parents or not) took over a lot of the care at about the one hour mark, assuming a healthy and uncomplicated birth. It was (for a novice like me) shocking and horrifying. But it really was very fast. (And there wasn’t an instruction manual, either.)

  7. Julia,

    For those who are sure – then a clear option would be to let them go before a judge and have them waive the time frame – someone who has no stake in it.

    I think due to the gravity of adoption there should be no playing field for bad actors. It has to be clean or it becomes easier and easier to cross that line.

    • I fear you cannot ever protect completely against bad actors but I wonder about whether I should let my imagination of the worst possible actor drive policy. I would like to believe (and will believe for now) that the sort of fraud alleged in the case is uncommon. The far more common issue, I think, might be when people are pressed into making decisions at times that are less than optimal for those decisions. Thus, I’d use that more common problem to guide me in crafting a solution. And I think the suggestion of some neutral decision maker who can ascertain consent is potentially a good way to go.

      As it stands now I think there always has to be some post-birth confirmation, even though this may often look really pro forma. Do you suppose you could have the appearance before the neutral decision maker pre-birth and then a simple confirmation post-birth? It seeems really problematic to me to say that a pregnant woman cannot make up her mind in advance, but I can feel this conversation sliding that way.

  8. Julie,

    No a pregnant woman can not make the decision pre-birth. Absolutely not. Once your child is born they become real – until that moment despite keeping you up nights kicking you in the ribs they aren’t completely real. Hormones also play real havoc to greater or lesser degrees during pregnancy and immediately after birth. I never suffered from PMS but during pregnancy all bets were off. Any decisions I had made then would have not been guaranteed to be done with a clear head.

    I don’t understand your reluctance to utilize the court system in such a manner. The surrender process would not take more than at best 30 minutes and could be moved from a judge to another level of the system, perhaps even the department of family and children.

    I was thinking about this the other night and if a parent wants to relinquish their child – say a two or four year old – how many hoops, checks and balances do they have to go through and will they be labeled. Yet relinquishment at birth has little to none…the only difference is the demand side of the equation and the industry that profits from it.

    • I’m just worried about where the logic of women not being competent decisions makers pre-birth might lead, you know? BUt perhaps this is an area where it could be cabined–it is a particular sort of decision. The difference between the day before a child is born and the day after is certainly a dramatic one.

      In a big picture way this leads me to think back generally about the ways in which pregnancy is extraordinary and perhaps unique. Maybe there isn’t anything like it and so it has to be considered all on its own. Maybe it doesn’t make you incompetent for purposes of buying a car or giving someone legal advice but there are some sorts of decisions–or maybe just one decision–adoption–that needs to be treated differently.

      I guess my ideal procedure would involve a neutral decision maker in a setting a little removed from the hospital room (I don’t think I want someone going room to room, as it were) but still easy for all those involved. Again, I’m thinking that in many instances everyone is on the same page with the same interests and so making it easy helps everyone. But you need enough process around it to insulate the woman who just gave birth from undue pressure. It’s just tricky and my visions of walking into a courthouse don’t quite do it for me.

      In generaly you are probably right that erring on the side of more hoops is better than erring on the side of too few hoops.

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