Rarely do couples starting a family stop to consider the legal implications of having children. Everything from the obligations imposed on parents to custody and support of children are subject to legal determination. Same-sex couples who decide to have children face even more legal issues related to that decision. For couples who did not make a conscious decision to have a child together, the legal system becomes almost immediately involved via paternity, custody and support proceedings.
Throughout a child’s life, until he or she reaches the age of majority (which differs from state to state and even depending on circumstance), the government – either through legislation or the courts – will have some effect on the parent-child relationship.
Parents have a legal obligation to provide for the health and safety and well-being of their children. This is true for biological parents as well as for adoptive parents; for married parents and for divorced parents. But being responsible for your child means more than just providing room and board. As a parent, you may be legally liable for any damage your child causes through negligent behavior or in a criminal act.
1.1 Civil and Criminal Liability for Acts of a Child This liability can be imposed both civilly and criminally, and doesn’t begin until the child reaches an age of comprehension, usually between 8 and 10, although this varies by state. In civil court, liability usually amounts to a financial obligation, such as payment for damages. Most homeowner policies include coverage for personal or general liability. This amount is designed to protect the insured in the event they are found to be liable in for damages in a court of law, and usually extends to minor children and other household members. In criminal court however, many states have enacted laws that allow the parent to be charged with a crime as well, often known as contributing to the negligence of a minor. In this case, both the parent and the juvenile could be charged with separate crimes, even though the parent took no part in the original act. Parental liability generally ends when the child reaches the age of majority (18 in most states) or when the parental rights have been terminated.
1.2 Termination of Parental Rights Parental rights can only be terminated when the parent has been found to be unfit, due to abuse, neglect, mental illness or other deficiencies or when the parent gives them up voluntarily. Once parental rights have been terminated, all legal responsibility for the child stops (this may or may not include the responsibility for child support, depending on the circumstances).
2.1 Married Couples Married couples are generally presumed to share physical custody and legal custody of any children born during their marriage. When that couple separates or divorces, the family court will issue an order of custody and visitation, awarding physical custody and legal custody of the children to one or both parents.
2.2 Unmarried Couples Couples who are not married upon the birth of their child must first establish paternity of the child and then ask a court to determine custody and visitation. Same-sex couples will likely face substantial legal issues related to the custody and visitation of children upon separation.
2.3 Types of Custody and Visitation Physical custody and legal custody are different and can be joint and/or sole. Visitation refers to parenting time a non-custodial parent shares with the child. In most cases, parents are able to create a mutually-acceptable parenting agreement to govern the parenting schedule. A family court makes its final determination of custody and support based upon the best interests of the child.
2.4 Custody and Visitation of Non-biological Parents and Grandparents There are certain circumstances in which a non-biological parent can seek and obtain custody and/or visitation with a child. These circumstances are very case-specific and relatively rare – but are again based upon the best interests of the child. Grandparents have very limited rights to seek custody and/or visitation with a grandchild. Their rights have been limited by the U.S. Supreme Court and are handled on a state-by-state and case-by-case basis.
2.5 Geographical Considerations Relating to Custody As modern society is relatively transient, it is not uncommon for custody determinations and disputes to cross state lines and even national boundaries. Domestically, a federal statute has created some uniformity and guidance to state courts in how to handle multi-state custody matters. Internationally, most countries subscribe to the Hague Convention which provides legal guidance for transnational custody issues. Even after a custody order is entered, geography can cause problems if either the custodial or the non-custodial parent decides to move. Each state has a procedure in place to guide parents in how to seek modification of child custody order to account for such a move.
2.6 Modification of Custody Orders Child custody orders are always modifiable by the court. Generally, the court will determine whether there has been a substantial and continuing change in circumstances such that the existing custody order is no longer in the best interests of the child. If it reaches that determination, it will modify the custody order to account for those interests.
Parents of a child, whether they are married or unmarried, bear the legal responsibility to financial support that child. If the parents divorce or are otherwise not together, one parent will likely be ordered to pay child support.
3.1 Who Pays Child Support The parent with primary physical custody of the child is generally tasked with meeting the child’s daily financial needs. The non-custodial parent is, therefore, required by the court to contribute a set sum to the custodial parent to help meet those needs. Even in the case of shared physical custody, where each parent has relatively equal time with the child, one parent may be ordered to pay child support to the other if he or she outearns his or her ex-spouse. Child support can be paid directly to the custodial parent but most courts now require payment through a central clearinghouse so that it can be tracked for enforcement purposes.
3.2 Calculation of Child Support In most cases and most states, child support is calculated according to a formula established by the legislature (often with the assistance of a multi-disciplinary committee). The formula generally takes into account the incomes of both parents, the number of children to be supported, the cost of work-related child care and the cost of medical insurance. There may be other additions and deductions to the child support figure depending on the state.
3.3 Child Support Enforcement Each state government is tasked with assisting custodial parents in enforcing child support orders. The level of assistance may vary from state to state and case to case but can include civil litigation and/or criminal prosecution.
3.4 Modification of Child Support Child support orders, like custody orders, can always be modified. The party seeking modification generally must prove a substantial and continuing change in circumstances since the previous order. This can include an increase in medical or educational expenses, advancing age of the child and even increased or decreased income of the paying parent. Again, these factors can also vary by state. Modification can only be achieved through the proper channels with the ultimate approval of the family court.
When parents of a child are married to one another, the husband is presumed under the law to be the father of that child. If the mother of a child is unmarried at the time of her child’s birth, however, a court must issued an order determining paternity of the child in order for a man to have any legal rights to or responsibilities for a child – or for that child to have any of the rights that are afforded to legally-recognized children (generally, inheritance rights).
4.1 Establishing Paternity Either a man or a woman can file to establish paternity of a child. A petition to establish paternity is filed in the appropriate family court. The man will either admit or contest paternity. If admitted, the process is fairly simple to resolve. Depending on a woman’s situation, the state may be able to assist with a paternity filing (and establishment of child support).
4.2 Paternity Tests If paternity is contested, the court will order paternity testing. There are several different paternity tests available – most of which have an extremely high rate of accuracy. After paternity test results are returned to the court, the court will issue a paternity order (or not). In some cases, multiple putative fathers can be named in the same paternity case such that testing will determine which of them is the actual father of the child.
4.3 Why Establish Paternity As noted above, the establishment of paternity can be extremely important to each party in the situation. A father can seek to establish paternity to ensure that he is part of that child’s life through a custody and/or visitation order. A mother who retains primary custody of the child might seek a paternity determination to allow for visitation and child support orders. For the child, the establishment of paternity may be importantly emotionally but it will also establish the legitimacy of the child-parent relationship for future legal needs, including any potential inheritance issues.
5.1 Types of Adoption After someone makes the decision to adopt, there are still many more choices to consider. Will you adopt domestically or internationally? Will you use an agency? If so, you will need to consider a public agency versus a private agency. Some parents choose to forego agency assistance altogether and pursue adoption independently – which requires additional information and legwork. Adoptive parents must then choose between open (or identified) and closed adoptions. Adoptions by step-parents, domestic or same-sex partners or other family members also put a slightly different spin on the proceedings.
5.2 The Adoption Process Depending on the type of adoption chosen, the adoptive parents might have to locate birth parents or wait for a suitable child to be identified and referred for adoption. The court typically requires a home study in which a social worker interviews and investigates to determine the suitability of the adoptive parents. Birth parents must give their consent and voluntarily terminate their parental rights. A court hearing will finalize the adoption process. Name changes and birth certificate amendments are generally ordered after the hearing.
5.3 Step-parent Adoption As blended families become more common, it follows that more people are considering step-parent adoptions. Procedurally, step-parent adoptions are certainly less involved than typical adoptions. This type of adoption does require a termination of the parental rights of one of the biological parents however. Such a termination also halts court-ordered child support and visitation. In the event of a divorce following a step-parent adoption, the adopting step-parent will have all normal rights and obligations relating to a child and divorce.
5.4 Same-Sex Parent Adoption Depending on where they live, LGBT parents and couples face additional scrutiny or restrictive laws when they seek to adopt a child. They also face additional family law issues when one parent births or adopts a child – because state laws make it difficult for the other same-sex parent to adopt, and therefore have legal rights to/obligations for, the child.
5.5 International Adoption Almost 20,000 American families each year adopt children internationally. Most international adoptions by American parents occur through Guatemala, Russia and China – although the adoption laws in those countries can and do change regularly. International adoption does require the assistance of an agency as well as some additional procedure related to immigration. There is very rarely though an issue with birth parents changing their minds or wanting a continued open relationship, making international adoption attractive to some adoptive parents.
Biological parents assume legal guardianship of their child at birth. But guardianship can also be conferred by a court order if a court determines it to be in the best interests of the child. Designation of someone other than biological parents as guardian does not necessarily terminate the parents’ rights, at least permanently. Guardians can also be designated by a court after the death of biological parents. A guardian has legal authority to make major decisions on the child’s behalf as well as the authority to decide day-to-day issues. Guardians can specify which schools the child will attend, which religions will be observed and even what activities the child will be allowed to participate in. With this authority also comes the responsibility of caring for the child including the provision of food, clothing and shelter as well as medical care and education.
6.1 Types of Guardianship Depending on your jurisdiction, there are several different types of guardianship which can be conferred by a court. The most commonly used guardianships include guardian ad litem, temporary guardian and guardian of the estate. 6.2 Guardianship or Adoption While at first glance guardianship and adoption can appear almost the same, there are very clear differences in the details. In adoptions, the parental rights of at least one biological parent is completely terminated – ceases all rights and responsibilities with regard to the adopted child. In guardianships, the rights and responsibilities are limited by law – sometimes in relation to time (temporary guardianship), sometimes in relation to authority (guardians of the estate have authority only over financial matters). Even in a permanent guardianship, the biological parent still maintains some degree of legal rights and responsibilities – including support obligations.
In family court, emancipation is a legal process where a minor is released from parental control and the parents relinquish any legal responsibility for the child. Should emancipation be granted, the parents are no longer responsible for the child’s care and well-being and have no authority over the child’s decisions, finances or property. The emancipated minor has rights and responsibilities that other minors do not.
Unfortunately, the family law courts are forums not only for divorces and adoptions, they also see a variety of cases that relate to the abuse and neglect of children. As noted above, family court judges are often asked to order guardianships – in some cases, the guardianship has been necessitated by an allegation of physical abuse, sexual abuse or neglect of a child.
State laws dealing with parenting are written (in almost all states) for heterosexual parents. Homosexual parents have been forced to find ways to establish their rights and obligations as parents within a legal structure that does not provide for them. Homosexual biological parents are generally taken care of under state law. However, adoptions can be difficult for same-sex couples (or even prohibited). And, the “second parent” in a same-sex relationship – the parent without biological ties or who was not the adoptive parent – can face major legal roadblocks in his or her quest to have legal rights as a parent. Adoptions, guardianships and parenting agreements are just some of the tools that these parents creatively use to guide their legal positions as parents.