| CHILDREN
Decision to Have Children
Q. Who makes the decision to become a parent?
A. The Supreme Court in Roe v. Wade and other cases has declared
that the decision of
whether or not to have a child is a very personal one and that the decision
is protected by
the right of privacy under the United States Constitution. This means
that individuals who
wish to have a child cannot be barred from doing so (unless perhaps they
are
incarcerated). Individuals who do not wish to have a child have a legal
right to obtain and
use contraceptives.
Q. What if one spouse wants children and the other does not?
A. This is a significant emotional issue that, of course, can
be very difficult. If one
member of the married couple wants a child and the other does not, that
could be a basis
for a divorce. A disagreement on such a fundamental issue could be an
"irreconcilable
difference" under the no-fault divorce laws of most states. In states
that have grounds for
divorce based on someone being at fault, a disagreement on the question
of whether to
have children could be viewed as "mental cruelty," and thus
a basis for ending the
marriage.
Beyond divorce, remedies are limited. The courts cannot force a pregnant
woman to
stop the pregnancy, nor does the law require a wife to have her husband's
permission for
an abortion.
Abortion
Q. What is the current status of abortion law?
A. As of the year 2000, women still have a right to an abortion.
In the 1992, the U.S.
Supreme Court in the case of Planned Parenthood v. Casey reaffirmed its
1973 decision
in Roe v. Wade that women have a constitutional right to seek an abortion
during the
early stages of pregnancy. States, however, do have a right to regulate
how abortions are
performed and states may ban abortions after the fetus is viable (able
to live outside the
womb) unless the mother's life or health is endangered. The scope of regulation
and
funding of abortions by the government varies from state to state. In
Casey, the Supreme
Court held it was permissible for states to impose a 24-hour waiting period
on obtaining
abortions and to require a minor to have consent of one parent or a judge
for an abortion.
Childbirth
Q. Are there any rules prohibiting parents from having their children
born at
home?
A. No, at-home births generally are an option for parents. The
mother should have good
prenatal care, and she should make sure the health care provider believes
the delivery will
not pose significant risks to the mother or child. If the delivery is
risky for the mother or
child, it is much better to use a hospital. Some states allow nurse-midwives
to deliver
children at the parents' home or at a birthing center. Other states allow
nurse-midwives to
practice only at hospitals or under the direct supervision of a physician.
Q. If the delivery is at a hospital, may the father or a sibling
be present?
A. At most hospitals, the father may be present at birth. Hospitals
often prefer that the
father and mother have gone through some training before the delivery.
Parents should
check with their hospitals about other rules and about whether siblings
would be allowed
in the delivery room.
Rights and Responsibilities of Parents
Q. What are the rights of parents?
A. Parents have a right to direct the care, control, and upbringing
of their children. This
gives them the power to make various decisions, including where to live,
what school to
attend, what religion to follow, and what medical treatment to obtain.
Normally the state may not interfere in these decisions. Only in life-threatening
or
extreme situations will the courts step in to overrule parents. For example,
when a child
might die without the medical care that the parents refuse to provide,
a judge may make
the child a ward of the court and order that the care be provided. Parents
have been
prosecuted for withholding medical treatment from seriously ill children.
This is true even
in situations where parents act out of religious belief.
There may be certain medical procedures, however, that the law allows
"mature
minors" to decide upon for themselves, even if their parents disagree.
For example,
parents have no absolute veto power over a minor's decision to use contraceptives
or to
obtain an abortion.
Parents also have the legal authority to control their children's behavior
and social
lives. Children have a duty to obey their parents' reasonable rules and
commands. Parents
may discipline or punish their children appropriately. They may not, however,
use cruel
methods or excessive force; that constitutes child abuse.
Q. What are the legal rights of children?
A. Children have a unique status under the law. This chapter
cannot explain this special
status fully. However, it can point out a few of the major differences
between the rights of
adults and children.
Most important, children have a right to be supported by their parents.
At
minimum, this means food, shelter, clothing, medical care and education.
The law defines children as unmarried persons under the age of majority--usually
eighteen--who have not left home to support themselves. The law protects
children from
abuse and neglect. It also entitles them to the protection of the state.
Children may be
removed from their home if it is necessary to ensure them a safe, supportive
environment.
This removal may be temporary or permanent.
The law allows children to sue. However, in most instances an adult legal
representative must begin the suit.
Children accused of committing crimes are subject to the juvenile courts
of their
state, not the regular criminal justice system. (In some states, children
accused of serious
crimes who are above a certain age—such as thirteen—may be
tried in court as adults.)
Juvenile courts entitle children to only some of the due process safeguards
that adults
receive. In return, these courts have more freedom to deal with juveniles
in an effort to
rehabilitate them.
Q. How long do parents' legal obligations to their children continue?
A. Parents are legally responsible for their children until they
reach the age of majority
(usually eighteen), marry, or leave home to support themselves. In some
states, divorced
parents may be obliged to pay for a child's college education or trade
school. In addition,
a parent's duty to support a disabled child might continue for the child's
entire life.
Sidebar: Who Controls the Money Children Earn or Inherit?
Generally, parents do not have unlimited, direct control over their children's
money. If
children earn or inherit money, that money must be used for the children's
benefit. Some
states require the appointment of a guardian under court supervision if
a child has
substantial funds. Unless a court appoints someone else, parents are the
guardians of their
children's money. The parents are legally responsible for managing the
money properly
and using it for their children's needs.
Q. Are parents financially responsible for the acts of their
children?
A. The law on this varies from state to state. Some states make
parents financially
responsible for damage caused by their children, but the states may place
limits on the
amount of liability. In Illinois, for example, parents or guardians may
be required to pay
no more than $2,500 for the "willful or malicious acts" of minor
children who harm
another person or property.
Generally, if a child has an auto accident while driving a parent's car,
the parent's
auto insurance policy will cover the loss to the same extent it would
if the parent had
been driving the car (although parents usually have to pay higher insurance
premiums to
cover young drivers).
The Duties of Adult Children Toward Their
Parents
Adult children normally have no responsibilities toward their parents.
In return, their
parents have no duties toward them. However, there are exceptions.
In some states,
children must support parents who otherwise would be on welfare. The
children can
avoid paying support if they can show that the parents did not care
for them when they
were underage. In some states, children may have to contribute to
the support of parents
in a state hospital or mental institution. However, the children's
ability to pay--not the
actual costs of the care--usually determines how much they must pay. |
Adoption
Q. How does one adopt a child?
A. Adoption laws vary from state to state. For adopting a child
who is not related to the
adoptive parent or parents, there generally are two types of adoptions:
agency adoptions
and private adoptions.
Q. What is an agency adoption?
A. As the name implies, the parents work though a licensed agency.
The agency often
supervises the care of biological mothers who are willing to give up their
children, and it
assists in the placement of children after birth. Agencies screen adoptive
parents--often
extensively--before the adoption proceeds. Some agencies have long waiting
lists of
parents. Some agencies also specialize in placing children born in foreign
countries.
Q. What is a private adoption?
A. Private adoptions bypass the use of agencies and they may
help bypass the long
waiting lists as well. The process may begin when people who seek to adopt
a child
contact an attorney who specializes in adoptions. The attorney may work
with physicians
who are aware of women willing to give up children for adoption. Sometimes
would-be
parents will place ads in newspapers seeking women who are willing to
place their babies
for adoption.
In most states, adoptive parents are allowed to pay a biological mother's
medical
expenses and certain other costs during the pregnancy. But adoptive parents
are not
allowed to pay the biological mother specifically to give up the child.
The law treats this
as a "black market adoption," the buying and selling of children,
and it's a crime in every
state.
Q. Is court approval necessary for an adoption?
A. Yes. Court approval is needed for both agency and private
adoptions. Many states also
require that the adoptive parents be approved by a social service agency.
Q. Can a biological mother revoke her consent to adoption?
A. Yes, but there are limits on her right to revoke consent.
In most states, a biological
mother who initially consents to a child's adoption before birth, may
revoke that consent
after birth. In other words, the mother's consent usually is not final
or binding until a
certain period of time after birth. In most states that time period is
relatively short, such as
two to eight days. If a biological mother consented to adoption during
the proper period
of time after birth, it is much harder for her to revoke her consent.
Following an afterbirth
consent, a biological mother generally may revoke her consent only if
she can show
that there was fraud or duress. Fraud could be found if the adoption agency
or attorney
lied to her about the consequences of what she was doing. Duress might
exist if a person
at the adoption agency threatened the biological mother with humiliation
if she did not
sign. A biological mother's change of heart normally is not enough by
itself to revoke an
after-birth adoption consent. Although a mother may feel emotionally drained
and under
stress after birth of a child that she plans to give up for adoption,
that type of stress
usually is not enough to revoke an adoption unless the person or agency
that obtained the
mother's consent used harsh tactics to obtain her consent.
Q. Is the biological father's consent necessary?
A. Generally, yes--at least if the biological father is known.
He should be notified of the
birth and pending adoption so that he may consent or object. If the father
is not known,
the adoption may proceed without his consent (although adoptive parents
can feel safer
about the validity of their adoption if the biological father has been
notified and agreed to
it). If a biological father is not notified, he may later contest the
adoption if he acts within
a certain period of time after the child's birth or adoption. (Six months
is a typical time
period, although the period varies between states.)
Q. What is a "related adoption"?
A. A "related adoption" is one in which a child's relatives,
such as grandparents or an aunt
and uncle, formally adopt a child as their own. This might occur if the
child's biological
parents are deceased or are otherwise unable to care for the child.
Q. What is a stepparent adoption?
A. A stepparent adoption is one in which a child's biological
parent marries someone who
wishes to adopt the biological parent's child and is able to do so.
Q. What happens if the child's other biological parent does not
agree to the adoption
by the stepparent?
A. If a biological parent does not consent to the adoption of
a child, the child cannot be
adopted by another person unless a court first finds that the biological
parent is unfit.
Q. What is the definition of an unfit parent?
A. Parental unfitness is determined by state law. Normally, an
unfit parent is one who has
failed to have regular contact with a child or to contribute to his or
her support. A parent
is also unfit if he or she has been abusive or has otherwise failed to
provide adequate care
for the child.
Q. What happens if a stepparent adopts his spouse's child and
the parents later
divorce?
A. A divorce does not affect the legality of the adoption. The
stepparent continues to have
all the rights and responsibilities of a biological parent, including
a right to seek custody
or visitation and a duty to support the child.
Q. Can a single person adopt a child?
A. Yes, although some agencies strongly prefer to place a child
with a married couple.
Other agencies--particularly those dealing with children who might be
hard to place--are
willing to place a child with a single person. Single-parent adoptions
usually are possible
in private adoptions.
Q. Can lesbian or gay couples adopt a child?
A. Yes, in some states, such as New York and California, gay
and lesbian couples are
able to adopt a child.
Q. What is an "open adoption"?
A. An "open adoption" is one in which the adoptive
parents agree to let the biological
mother (or biological father) have some continued contact with the child
after the
adoption. This contact might be periodic visits or an exchange of pictures
and other
information between the adoptive family and the biological parent or parents.
The nature
of the contact often is specified in the adoption agreement. Open adoptions
have become
more common as more birth mothers have become involved with choosing which
adoptive family will receive their child. But open adoptions are a relatively
new
phenomenon, and in many states it is not certain whether an open adoption
agreement is
enforceable by the birth mother.
Q. Who has access to adoption records?
A. In most states, court adoption records are sealed and can
only be opened by court order
(although Oregon allows all adopted children access to their adoption
records).
Procedures and standards for opening records vary by state. Increasingly,
states require
that certain non-identifying information, such as the medical history
of the biological
family, be made available to the adoptive parents at the time of adoption.
Some states
also have registries where parties to the adoption can agree to a later
exchange of
information, including names and addresses.
Q. What is the legal status of an adopted child?
A. An adopted child has exactly the same rights as one born to
his or her parents.
Similarly, adoptive parents have the same obligations to the child as
they would to one
born to them.
Q. What about medically assisted pregnancies?
A. As medical science advances, there are a variety of ways in
which individuals who
wish to become parents can be helped to do so by medically assisted means,
including
artificial insemination and in vitro fertilization. These medical procedures
have legal
implications that vary by state. Generally, however, if both husband and
wife consent to
artificial insemination or in vitro fertilization, the rights and duties
of the husband, wife,
and child will be the same as if the child had been naturally conceived.
Q. What is surrogate parenthood?
A. In this arrangement, a woman agrees, with or without payment,
to bear a child for
another couple. This usually occurs when the wife cannot conceive or carry
a child to
term. In nearly all cases, through artificial insemination, the husband's
sperm fertilizes an
egg belonging to either the wife or the surrogate mother. This makes the
husband the
biological father of the child. The surrogate mother agrees to give up
all parental rights at
birth. Then the wife of the biological father legally adopts the child.
A few states outlaw
this arrangement when the surrogate mother receives payment. Other states
are
considering laws that would restrict it. Persons contemplating such an
arrangement
should seek legal advice before entering into such an arrangement.
Paternity
Paternity and Modern Science
Paternity cases increasingly use scientific evidence. The blood tests
used during much of
the last century were useful only up to a certain point. They might
prove that a man was
not the father of a certain child, but could not prove that he was
the father. New tests that
sample the DNA (genetic material) of the child and the supposed father
are nearly 100
percent accurate in proving or disproving paternity. |
Q. May an unmarried mother legally force the
father of her baby to support the
child?
A. Yes. Both parents, married or not, have a duty to support
the child. If the father admits
paternity, the mother should have him sign a statement to that effect.
Then, if necessary, it
will be easier to force the father to help support the child. If he does
not admit to being
the father, the mother may file a paternity suit against him. If this
civil action succeeds,
the court will require the father to provide support. Sometimes the court
also will require
the father to pay for the mother's pregnancy and childbirth expenses.
Q. If a court decides that a man is a child's father, how much
will he have to pay in
support?
A. The law requires unwed parents to support their children the
same as married parents.
Child support guidelines, which have been enacted in all states, will
determine the
amount of support. As with children born to married parents, the obligation
of support
usually lasts until the child is an adult. If a father refuses to support
his child, a court may
garnish his wages, seize his property or bank accounts, revoke his driver's
license or
professional license, and perhaps even send him to jail.
Q. What may a husband legally do if his wife bears a child that
is not his?
A. The law presumes that a married woman's child is her husband's.
He must support the
child unless he can prove in court that he is not the father. Some states
assume the
husband is the father no matter what proof he presents. These states do
not allow a
husband to disprove paternity of a child born during the marriage.
Abuse and Neglect Laws
Q. What is child neglect?
A. State laws make it a criminal offense for parents and legal
guardians to fail to meet
children's basic needs, including food, shelter, clothes, medical treatment,
and
supervision. Such failure constitutes child neglect.
Q. What persons and what types of actions are covered by child
abuse laws?
A. It is a crime for adults to abuse children in their care.
Such adults include parents,
foster parents, legal guardians, other adults in the home, family members,
and babysitters.
Supervising adults may not go beyond reasonable physical punishment. For
example, adults who beat children so severely that they require medical
treatment have
violated these laws. Child abuse laws involve not only physical abuse
(such as beatings or
starvation), but other types of cruelty, such as sexual molestation and
subjecting a child to
extreme public humiliation.
A person may be guilty of child abuse that he or she did not personally
commit if
that person had legal responsibility for the child and failed to protect
the child from the
abuser.
Taking Children Away from Their Parents
Whether or not a criminal case is brought, the state may remove children
from the
custody of their parents if there is reason to believe the parents
are physically, sexually, or
emotionally abusing one or more of the children. The state also may
remove the children
if the parents are unable or unwilling to provide adequate care, supervision,
and support. |
Q. Who has a duty to report suspected child neglect and abuse?
A. The law compels a wide range of people who have contact with
children to report
suspected child abuse or neglect. Such people include doctors, nurses,
teachers, social
workers, and childcare providers . A person who is required to report
suspected neglect or
abuse may face civil or criminal penalties for failure to do so. In addition,
states often
encourage the reporting of suspected abuse by others such as neighbors
and family
members through special hot lines. The laws of most states encourage persons
to make
reports of abuse by granting them immunity from defamation suits by the
accused parents
if they make the report in good faith. Some states keep central lists
of suspected child
abuse cases. This helps identify parents, for example, who take their
children to different
hospitals in order to conceal the evidence that they have repeatedly abused
their children.
Q. If the law takes children away from their parents, is the
removal temporary or
permanent?
A. The goal usually is to reunite the family after correcting
the problems that led to the
removal. This, however, is not always possible. For example, if the parents
make little or
no effort to improve the children's care, then the state may ask a court
to end all parental
rights. If this happens, the legal bonds between parents and children
are completely and
permanently cut, and another family may adopt the children.
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