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?