Abandonment, Parental Rights and the Well-Being of Children

This post is generated by thinking more about the topic of the last couple of posts and the comments there, so you might want to start with them.  While this started out as a discussion of some specific Utah law (and there is more to be said about that, no doubt) I was thinking about some of the underlying issues more generally. In particular, I was thinking about how various assumptions and value choices play out in assessing the appropriateness of effectively terminating parental rights where a parent abandons a child.

Here’s the context in which this might play out.  Suppose there is a person who is a legal parent.   That person then vanishes from the child’s life (and let’s suppose that it is clear that they did so voluntarily for the moment.)   Time passes.  Someone else wants to adopt the child.   Generally the child cannot be adopted without the consent of the parent but you could easily structure the law to say that consent to adoption will be presumed from the abandonment.   Then the adoption goes forward and the child has new legal parents, the rights of the old one extinguished.  Even if that person reappears, they have lost their rights.

Now obviously we’re going to care a lot about what constitutes abandonment and I’ll come back to that.  But first let me say that I think for most (but I know not for all) people, this treatment of abandonment will make sense.   Otherwise the child is permanently in limbo.  Unless you are willing to countenance increasing the number of legal parents, without getting rid of the earlier legal parent there can be no new legal parent.   (I realize that this may be, at least in part, a psychological reality for the child.  I don’t think the law can do much about that.   I’m thinking of legal limbo.)

As I try to understand the different ways people react to this (and as people try to figure out what should count as abandonment) I find it is useful to break things down further into the assumptions people make and the values we place on different sorts of interests.

For instance–there’s a perpetual discussion here about how important the genetic link between parent and child.   Some people think it is extremely important while others (and I’m in this latter camp) do not.   It seems to me if you think it is important, then you are going to approach this idea of abandonment with greater suspicion.   After all, when the doctrine is employed it will be used to sever the legal link between genetic parent and child.   This skepticism can take at least two different forms:  It could lead you to reject the whole idea of using abandonment to sever parental rights or it could lead you to have a very high standard for what constitutes abandonment.

There’s also a countervailing value—how important is it to have a legally protected relationship between the psychological parent and child?  I think this is extremely important.   That mean I tend to view abandonment as a useful doctrine–one that allows the present psychological parent to gain legal protections.   It’s really the mirror image position to the one described above.

I’d also expect that everyone–no matter where they fall on these issues–would defend their stance as being about what is best for the child.  I would do that by saying that protecting the psychological parent/child relationship advances the well-being of children and those commitment to the genetic link would say the same thing about that.

But then we come to assumptions about how the world operates.   If I think it is fairly common for genetic parents to walk away from the children, then I’m going to be more enthusiastic about the doctrine of abandonment, because without it a lot of children will be in that legal limbo.  But if you think it is rare, then there isn’t so much need for the doctrine and so it is, again, less defensible.

I suppose what I am struck by here is that this argument about abandonment and whether/how to give it meaning comes back to some very familiar debates.   Is there really nothing new under the sun?


15 responses to “Abandonment, Parental Rights and the Well-Being of Children

  1. Personally I don’t think this is about the genetic link it’s about the person who has the right and the duty to parent abandoning their responsibility and leaving it to someone else. And I think at that point that someone else has the right to decide what is in the child’s best interest – within reason. The genetic link shouldn’t take preference where the birth parent has no interest in or capability to parent.

    One option for example might be to have the child fostered for a period of time before adoption, to give longer for the father to come forward – probably not so great for the child if you believe that breaking emotional attachments at a young age is traumatic. Or if the foster family are the would-be adopters, that’s potentially difficult for them.

    Another solution might be an open adoption where the birth parents are not completely shut out of the child’s life, ie they can enter the child’s life later and have limited contact but no parental responsibility. A lot of adoption is done with some degree of contact now and it would give a way for the birth parent to remain part of the child’s life without affecting their security and primary attachments to their family.

    I find it very difficult to separate out these kinds of issues from the way abandonment is defined, because that’s precisely what makes the way adoption is done in Utah so unfair. Nobody’s complaining about the genuinely consensual adoptions that are done quickly and efficiently this way. It’s the people who are deliberately shut out who are treated unfairly. After all, you can’t judge which of any of the adoptions are consensual and which are manipulated (for want of a better word) by one party until there’s a complaint afterwards, so don’t you have to move with caution in all cases?

    An unfair doctrine is unfair no matter how many people it affects. There is less political will to sort out something that doesn’t affect many people, sure, but it is still worth doing.

    • Foster care is terrible for kids. So I think its important to inform the father of the proceedings, and for him to commence doing whatever he is supposed to do, before the birth. I think waiting around after the birth is a bad idea.
      This doesn’t address the question of what to do for mothers who lie. Perhaps there should be some kind of penalty. Naturally applying a penalty won’t help that particular kid, but as a deterrent to others?

  2. Kris almost got my point and Julie you just continuously miss my point. I’ll take it to the extreme. I want to do away with the whole concept of parental rights. A right is something we expect as the result of someone else’s performance of their duties. A minor is the one who should have the rights to rely upon their parents who made them to perform their duties and take care of them until they turn 18 and a minor should have the right to the state’s assistance in securing that performance from them or from an alternate source should their parents fail to liveup to those expectations. The parent should have no right to the child – that is slavery thinking. The child does not owe them the duty they owe the childthe duty.

    So when we speak of terminating parental rights it seems backwards. It is the child that had the right to something from the parent and why exactly does that right have to be terminated legally just because their parent is not holding up their end of the bargain.

    Now when you talk about protecting the psychological parent child relationship I again say where is the law that requires parents to have a psychological relationship with their children. It cannot be legislated only the financial and physical care can be. If I was super rich and unloving I could put my day old infant in some sort of boarding school and pay for it every month and never once see them and I would not be breaking any laws would I? I’d be fulfilling my legal duty as a parent without ever once laying eyes on my child or establishing an emotional bond. But I’m still their parent the one that at least owes it to them to make arrangements for their care and have not abandoned them. This finders keepers loosers weepers thing that you and others have with abandonment is twisted sick. Is it not possible to care for a neglected child without having to call yourself Mom or Dad? Can’t you leave the child’s truth alone like their Mom and Dad are junkies that can’t take care of them so we take care of them? Parents can be legal parents without the authority to make decisions on behalf of the child. Just look at the millions and millions of kids who are in the sole physical and legal custody of one parent while the other parent has just visitation and an obligation to support. Sometimes that parent is dangerous and there is supervised visitation or no visitation at all – but it does not make them a non-parent. Their name is not erased from the birth record just because they are not making decisions about what the kid has for breakfast or where they go to school. They have parental obligations to meet regardless of how they feel about it or the kid.

    • The problem might be that we’re thinking about “rights” in fairly different ways. I would not say what you say above about what a right is. I think a right is a legal entitlement. I have a right to make decisions about my own health care–which is to say I am entitled to do that. This is a protected right–you cannot just walk into the doctor’s office and tell them what care I should have, because I hold the right and you do not.
      Thus to me parental rights are critical and you cannot do away with them. Someone has to be entitled to decide what medical care is provided to a child. Someone has to decide what school the child attends. Someone has to decide who the child spends time with and who the child does not get to see. The person who is entitled to make these decisions is the person with parental rights–this is definitional, in my view. It is what it means to have parental rights.

      I suppose a different way to say this is that parental rights is, in my view, a shorthand way of saying that you are the person entitled to make all the decisions mentioned above. (And you are also the person with a whole bunch of obligations.) I think this usage of “parental rights” is pretty conventional, by the way. And then the question is who gets these–who holds the rights, who are they assigned to–and why.

      Now I assume that you will agree that someone has to have all the decision making authority and all the obligations. Is it correct, though, to say that you would not identify this as a question of who has parental rights–you’d call it something else?

      Another thing that seems to me to be going on is that I tend to focus on the power assertions inherent in parental rights–making decisions for the child–while you tend to focus on the obligations–having to financially support the child. If we do focus on the decision making part, then perhaps we can agree that you really cannot assign the decision-making to someone who isn’t playing any active role in the child’s life? SO it makes sense, if a genetic parent abandons a child (whatever we think abandonment means) to assign the decision making to someone else?

      We could have a separate conversation about the support obligations. Perhaps those should stay with the genetic parent. I won’t discuss right here because I think this long enough and I must go get ready for class. I do want to come back to the psychological parent point.

      • I’d say who is obligated to make all those decisions on behalf of a dependent minor? Well who caused there to be a dependent minor in the first place? This is the exact logic the courts use when they hunt down men who have abandoned their children in order to name them as the fathers they are and hold them responsible.

        It seems to me the only difference here for the parent is whether or not someone else wants their child. Like a little piece of property. Your responsible for the children you make if nobody else wants them but if someone else does want them well then you have no obligation to take care of them at all.

        How is that dependent minor suppose to feel about all that? How fair is it that one person whose father abandoned them gets to keep their name and receive support from their father and remain a member of their own father’s family, when another person whose father abandoned them does not even get to know their own true identity? All because some rich white people wanted to play mommy and daddy?

        • Hi Marilynn: I find your line of thinking very interesting. It appears that you believe that children who were abandoned by their bio-fathers and are subsequently legally adopted by step-fathers are unlucky, whereas the children who were abandoned by their bio-fathers and didn’t have a step-father to adopt them later are the lucky ones. Could you explain the basis for your opinion?

        • I think it is true that the law (and the legal system broadly) responds differently in cases where there are too many people who want to be parents and in cases where there are too few people. When no one is supporting a child, we tend to fall back on genetics, which guarantees us we will find one man out there who we can hit up for money. But if a woman is living with a man and you’ve got a nice stable looking arrangement with a child, we’ll often pick the man she’s living with–the one who is acting as father–over the guy a thousand miles away who has nothing to do with the child but the genetics.

          I know that seems inconsistent and perhaps it seems unfair. I think it would be justified as being (in a general sort of way) being what is best for children.

          There’s also that really important distinction about the difference between the support obligation (which he can meet from a thousand miles away–just write the check) and the authority to make the myriad of decisions that shape the child’s life. I don’t think he can be relied on to make good decisions about the child’s well-being if he doesn’t know the child or the child’s circumstances and so I’d be loathe to give him this power.

          I think this actually does fit with your “who is responsible” question. The man who had sex with the woman might be seen as responsible and hence should have to pay. But to say he is therefore also entitled to the privilege of making decisions for the child doesn’t follow for me. (Indeed, that seems to me really to reduce the child to property–he created the child, it’s his, he can do what he wants….)

          Perhaps another aspect of the difference between us is I see legal parenthood as bringing with it a mixture of privileges and obligations. I’m willing to give the man obligations on your theory, but I’m not willing to assume that he therefore gets the privileges.

          • You can have the title and responsibility without the obligation of making decisions daily. They do this all the time in terms of custody in divorce where one parent has all the decision making power and the other does not and has only visitation. The lack of daily authority and interaction does not erase their parenthood.

            • It’s interesting to me that you consider making decisions to be an obligation (which suggests that it is a burden) while I consider it to be a privilege.

              Perhaps it is important to distinguish between daily decisions and the big life shaping one. Daily decisions (what’s for lunch? Can you stay up to watch the Oscars?) generally go to whoever the child is living with. It’s just practical, really. How else could we do it? The big decisions (what school? What religious training, if any? What non-emergent medical care?) usually are shared between legal parents. It’s rare to see a legal parent excluded from them–there has to be a specific reason for doing that.

              And then there’s deciding who the child sees/does not see. Parents get to decide this and parents generally have a right to see and spend time with their children. If the guy is a parent he typically gets to see/spend time with the child and he gets to decide who else the child will see/spend time with. Again, I put this is the “privilege” category though it can also be thought of as a burden.

              It might be that if we could more readily separate the right to make decisions/see the child from the obligation to support that we’d find more agreement. I’m generally willing to let the obligation of support continue in the absence of any particular right to see the child or make decisions. But most people aren’t.

              • Hi Julie: I am unsure that it’s productive to debate whether decision-making in a child’s life is a burden or a privilege. Decisions need to be made for children on a constant basis, whether it’s considered a pleasure or not. When the child’s father is incommunicado but still the legal parent, this creates a number of difficulties the step-father if he is attempting to perform parenting tasks for the child.

                It seems that there are deadbeat parents who won’t relinquish their parental rights, but also won’t take interest in the children. I’ll share an example of a situation I know. The bio-father has voluntarily had nothing to do with his three now-teenage children for the past 13 years. He’s been urged to have a relationship with his children by everyone, including his ex-wife, the children’s mother. He even intentionally took a job out of state to avoid his children, even though his previous job near the children was by all accounts a better one! He has never paid child support.

                The mother’s current husband, the step-father, has performed all tasks of fatherhood for the past decade. Recently, the family wanted to take a vacation to Costa Rica, but the bio-father would not sign off on it. Without the bio-father’s written permission, the family could not take the trip. It’s cases like this in which I believe that a step-father should be allowed to adopt his step-children.

                • I think you are right about avoiding what is essentially a side-fight about the language (benefit/burden). I hadn’t put it into words that way but was thinking about how to frame the question without that language. (Maybe I will try this after I’m done teaching for the day.)

                  The example you give is a good one. It seems clear to me (though of course others should disagree) that the absent genetic father should not have the right to object to travel or to otherwise control the children. If nothing else, it looks like a good example of where abandonment is really an important doctrine. Assuming he had rights, surely he has abandoned them? But you can also ask the prior question–for which we might want more facts–should he have ever been given the right to make these decisions?

                  It’s useful to have a counter-example–something that stands in contrast to the Utah type cases. And then it’s important to think about which cases are common.

      • OK so bottom line is that a parent who abandons their child is not doing anything wrong because an abandoned child has no right to to be supported by the abandoning parent. The act of abandonment essentially turns the parent into a non parent with no obligation to the child whatsoever.

        The minor’s right to care and support turns on whether or not the parent feels like taking care of them. So the abandoned child deserves nothing from his or her parents. What if there is nobody lined up to take the child or one parent wants the child but the other does not. Does the child only deserve support from the state the lazy parent just gets to walk away.

        • I don’t think this is quite right. there are two different things going on in Utah and I bet the law most places in the US is similar in structure (but not in the details of the structure.)

          1. First a person has to gain recognition as a legal parent. State law tells you who/how. So the woman who gives birth is recognized as a legal parent (mostly, but see surrogacy in some places). If you are not a legal parent, you generally have no right to participate in decisions about adoption. (SO for example, if my neighbor is giving a child up for adoption, I’m not entitled to have a say–I’m no one special as to that child. Critical note here is that this is LEGAL parentage. And the Utah problem that we’ve discussed a lot is that Utah is strict about which unmarried genetic fathers are recognized as legal parents.

          2. Once you are in the legal parent category, your consent is required for adoption. But if you abandon the child, we will assume you have consented. As I’m using it here, only a legal parent can abandon a child. I think it is both morally and legally wrong for a legal parent to abandon a child (and there might be criminal liability), but it does in fact happen. Since it does happen, we have to cope with it when it does–life has to go on for the child. So if a legal parent has abandoned a child and someone wants to adopt that child, then they can do so, because we will say that the abandonment implies consent to the adoption.

          I think this is essentially a pragmatic judgment, and that while we may disagree about what should count as abandonment, more will agree that IF there is abandonment, then we ought to allow the adoption to proceed. I don’t think abandonment ends the parental obligation to support. Certainly it does not in the absence of an adoption. Thus, if the state finds the parent who abandoned the child, the state can seek financial support for that child. Typically (I think) if the child is adopted, then the parental rights/obligations of the abandoning parent are terminated and so no further support is owed, but you could say that the support obligations continues, I suppose.

  3. The laws that say people are responsible for taking care of the kids they create are not intended to protect the parents and give them rights to their children like property. They are intended to protect the child’s right to obtain those services from the people that caused them to exist. Those laws are also intended to protect society from having to pay to support children that they did not themselves create except in cases of emergency.

    It is not the parent whose loosing their rights to support its the child loosing their right to be supported by their particular parents and that is unfair. The child does have a right to be supported by their genetic parents because the court won’t hang that duty on just any old body when they are out doing paternity tests trying to find the father – it has to be THE father. It won’t matter to the court if he did not provide the mother with financial support while she was pregnant not at all. Why do the rules change just because someone else wants his kid? Why should someone else’s actions have any bearing at all on what his oblig

    • Probably because, in the worst case scenario, a person who becomes a parent when they don’t want to be, when they have already avoided their responsibilities, is likely to be a neglectful and damaging parent. Every child deserves better than that, including those who are stuck living with parents who don’t care for them properly.

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