In today’s legal climate, parental rights cases are increasingly evolving across a spectrum of niche areas, including paternity, parental fitness, third-party visitation and cases involving children in foster care.

 

A proposed Constitutional amendment on the horizon will formally be conferring the highest honor upon the oldest familial tie. Moreover, the definition of “parent” continues to evolve and change, while its common-law status as an unwavering fundamental liberty interest remains intact.

 

Parent Defined

 

The status of “parent” is a legal term of art that carries many duties and obligations. Also known as “parentage,” a person with this status is responsible for any of the following:

 

  • Care, custody, and control of the child
  • Legal, medical and educational decision-making
  • Deciding who may visit or have contact with the child
  • Financial support
  • Feeding, clothing and bathing the child
  • Providing safe shelter and protecting the child from harm

 

There are several ways this legal status is created. The first is through biological conception and childbirth. To determine paternity, there are generally three methods: 

 

(1) the mother and one holding himself out to be the father is married at the time of birth, which creates a rebuttable presumption that the husband and father are one and the same

(2) for unmarried parents, the father may sign a “voluntary acknowledgment of paternity” (note: this is different than signing the birth certificate)

(3) DNA testing

 

Another way parentage can be established is through adoption, which can also be accomplished in several ways. 

  • One or both natural parents may voluntarily relinquish their parental rights in favor of a chosen adoptive family. 
  • Parental rights may be involuntarily stripped through a court process that requires a high burden of proof of parental unfitness (i.e., adoption through foster care). 
  • Some children are unfortunately abandoned – or a father is unknown – thereby freeing the child for adoptive permanency

 

For same-sex couples, adoption by one or both partners is recognized and legal in all 50 states following a 2017 decision challenging an Arkansas regulation refusing to acknowledge same-sex partners on a birth certificate. However, private adoption and foster care agencies continue to discriminate against same-sex couples citing competing religious liberty interests. These cases are being met with a legal challenge, and a full resolution on this issue has not reached nationwide consensus.

 

Parental Rights as a Fundamental Liberty Interest

 

Regardless of the pathway to achieving parenthood status, the law is clear: the right to parent one’s child is a fundamental right akin to free speech, religion and all other First Amendment guarantees. This means that governmental interference in the right to parent is only acceptable in cases in which the state has a compelling interest to intervene such as child safety.

 

This fundamental liberty interest cannot be interrupted by court orders demanding third-party visitation or third-party contact over a fit parent’s objection. If a parent is fit and does not wish a certain person to have access to the child (including a grandparent or extended family member), a court cannot overrule this objection and override the parent’s wishes.

 

Emphasis on Family Preservation

 

In 2018, Congress placed a great deal of emphasis on preserving the family structure, particularly given the unrelenting effects of the opioid crisis and ongoing nationwide mental health issues. Fiscal analysis gleaned that it costs states less money to invest in prevention than it does to try and reunify families after children are traumatically placed in foster care. For parents struggling with addiction, mental health issues, homelessness or disabilities, the Family First and Prevention Act infuses the states with additional funds and resources to keep parents and children together and avoid family separation if at all possible.

 

Constitutional Implications

 

Given the national spotlight on fundamental parental rights and keeping families together, lawmakers have proposed a full Constitutional amendment to ensure there are no further doubts as to the importance of the parent-child bond. However, a formal federal amendment permanently solidifies this notion in the annals of Constitutional law.

 

If adopted as proposed, the amendment would specifically guarantee parents the right to direct the upbringing of their children. Supporters of the initiative assert that this measure is an essential step toward ensuring the strength of fundamental parental rights cannot be undone or reduced by state law. Opponents, however, worry that parents could be cloaked with too much power and that controversial or dangerous parenting decisions would have to be honored despite the potential for harm to the child.

 

 

 

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