Most people think of their family as a fact of life that’s not subject to change. You are your father’s child and you were given birth by your mother. That is the way it happened and your parents will always be your parents.
But the biological kinship relation of a parent and a child can be disconnected from the legal status of the relationship. The first is an unalterable genetic fact while the second can be modified by the operation of various legal processes.
The customary relationship between parent and child can be changed either temporarily or permanently for an assortment of different reasons. Divorce, disability, abandonment, drug abuse, or irresponsibility are a few of the causes that can permanently disrupt family structure through legal interventions.
Extended military service away from home or lengthy incarceration might warrant a formal, but temporary sharing of parental authority.
In the 2003 film “Secondhand Lions,” young Walter, played by Haley Joel Osment, is dropped off and left to live with his mother’s two bachelor uncles (Michael Caine & Robert Duvall) while she pursued her dream of an acting career with her current boyfriend. She promised Walter to return for him once she is more established. That never happened.
Although the day-to-day responsibility of feeding and supervising young Walter shifted to the mother’s relatives, the standard existing legal relationship of rights and responsibilities between mother and son did not change. She continued to be Walter’s mother, with all the exclusive rights and responsibilities of a parent, and he continued to be her son. The uncles were not given any additional legal rights, even though they exercised practical control as adults with a teenage house guest.
The movie was set in the much simpler times of the 1950s. In the 21st Century, however, issues such as school attendance, medical care, and insurance would demand a more clearly established and documented legal authority for custody decisions. Just “dropping off” a kid with a relative might not be so easy these days.
There is a wide spectrum of legal options from a voluntary delegation of specific parental rights with a limited power of attorney to supervised guardianships, and court-approved custody plans. Sometimes it happens that the state’s protective service steps in for various reasons such as neglect or abuse and asks the court to completely terminate all parental rights.
A court order that ends the parental relationship means that the parent no longer has rights to custody or visitation, but neither are they financially responsible for the minor. This is a permanent change in the relationship. In every instance, the law is primarily motivated by what is in the minor’s best interests.
It is recommended to seek the professional advice of an experienced attorney to understand and navigate these legal complexities. The laws and administrative procedures in each state are different.
Four basic methods to share or terminate parental authority
Power of Attorney of a minor,
Guardianship;
Court-ordered custody, and;
Removal, foster care, and adoption
Power of Attorney
In general, a Power of Attorney is a written document that gives someone, known as the “agent”, the legal authority to act for another, named the “principal.” The delegated authority to act may be broad or very specific, as defined in the written instrument.
A Power of Attorney can be used in a situation where a parent or legal guardian (the principal) needs to make temporary delegation of certain parental authority to another individual (the agent) for the sake of their child’s well-being. When a minor is left in the care of a non-parent, that person does not normally have any legal right to make significant decisions about the child. With short-term visits when a parent cannot be easily reached, it may be wise to give a responsible adult the ability to authorize emergency medical and dental care. With longer periods of parental absence, sharing the ability to manage school attendance may be important. Each situation is unique and the advice of a well-qualified attorney can help cut through the complexity and give practical guidance.
The proper execution of a Power of Attorney depends upon state law. Usually, it entails an identification of the parties involved, the length of time it will last, the specific powers delegated, and signatures that must be affixed in the presence of a notary public.
[KRS 403.352, 403.353, 457.020(7), 457.050(2)]
Guardianship
A guardianship for a minor is created and supervised by a state court proceeding. The person appointed by a court to care for a child’s welfare is called the “guardian” and the minor is referred to as a “ward”. There are two general categories of power and authority exercised by a guardian.
The first type of responsibility relates to the personal care and feeding of the youngster. The guardian decides where the juvenile lives. The guardian makes arrangements for clothing, healthcare, education, and religious training. The guardian functions as a parent in day-to-day life together as a family in the same household. This is sometimes called “guardianship of the person.” or a limited guardianship.
The other aspect of guardianship relates to assets and finances. If a minor owns real estate, the child does not have the legal authority to rent it, sell it, or borrow against it, and an adult must manage the property for the child’s best interests. This is often known as “guardianship of the estate.” Some state laws call this a “conservatorship.”
The court may appoint a single individual to perform both functions. A court might also designate two different guardians for a child. One would be a guardian of the person and the other would be guardian of the estate.
For example, if a child is orphaned with a large inheritance, a relative might be the guardian of the minor’s daily personal life, and a financial institution might manage the money and investments.
For most children, a parent serves as a “natural guardian” and no court proceedings are necessary to recognize the relationship. However, most states do not allow minor children to receive substantial cash gifts or inherit large sums outright in their own name, and parents do not automatically have a right to control a minor’s property. An inheritance intended for someone underage must be placed in a trust or a custodial account, or a guardian must be appointed.
Every state except South Carolina has adopted the Uniform Transfers to Minors Act (UTMA) and the Uniform Gifts to Minors Act (UGMA). These provide simplified methods to manage assets that do not require the creation and administration of a trust fund.
When a parent is unable to care for a child due to death, incarceration, or physical or mental incapacity, the law requires that a suitable guardian be found. If a parent makes an advance designation of an individual to be the guardian in a will, the courts will usually honor the choice if it is reasonable. This, of course, is all subject to the person agreeing to and accepting the appointment.
Court-ordered custody and support
When the relationship between parents with each other is combative, child custody, support, or visitation may become issues of disagreement. These problems typically arise when married parents seek divorce or unmarried parents contest paternity.
Most disagreements between parents about childcare in normal circumstances are resolved privately, but when that is not possible, the courts become involved and the decisions are made by a judge.
Some states, such as Kentucky, authorize grandparents to ask the court for visitation rights if they have been excluded.
Navigating the legal complexity of the laws relating to custody, support, visitation, paternity, and judicial proceeding always benefits from the involvement of an experienced lawyer. It is extremely difficult for a non-lawyer to find their way through the legal wilderness.
Relinquishment, removal, foster care, and adoption
Voluntary termination of parental rights
Parents may decide to voluntarily give up their legal rights and end their obligations to a child. This involves giving consent for adoption. The adoptive parents may be specifically identified in advance or the child may be surrendered to the custody of a state agency and foster care. The process requires court supervision and approval.
Involuntary termination of parental rights
Abuse and neglect
When the natural family care and support system breaks down and becomes abusive, the state’s social protective services may investigate and intervene. The courts can declare parents to be unfit and the child is removed from the parent's custody. When this happens the child is usually placed in foster care and parental rights are terminated.
Ultimately, the child may be adopted by new parents.
Abandonment - willful failure to support
Most states provide for the termination of parental rights if one parent has been willfully absent from the child’s life for a sufficient length of time and there has been no contribution to the expense of support. This often happens when the custodial parent remarries and the stepparent wishes to adopt the child. Court approval is required.
This is different from physically abandoning a child in a dangerous circumstance, which may be a criminal offense.
No comments:
Post a Comment