Parents, Children, and the State

Question 1

Unmarried Fathers + Marital Presumption

What is marital presumption?

Answer 1

• Husband of woman who gives birth to child, husband is presumed to be the father of the child
• Why have a rule where a married father presumed to be the father of a child wife gives birth to?
  1. Marital privacy
  2. Organizing and avoiding child born outside of marriage and the stigma of nonmarital children

Question 2

Michael H. v. Gerald D.

If a child was born out of wedlock, but during a marriage, does the third-party have a parental right to the child?

Answer 2

• Marital presumption limits a third party’s ability to challenge paternity.
• There is no parental right to a child born out of wedlock for a third-party outside of marriage, claiming paternity.
• presumption can only be rebutted by partners in marriage.

Question 3

Right to Exclude

Do parents have the right to exclude third parties from having contact with their children?

Answer 3

• the ability to exclude third parties is a central aspect of the parental rights protected by the constitution –
• parents wield the authority to decide who has contact with their children and to determine the type and amount of that contact;
• law presumes fit parent act in best interest of children and govt should not second guess

Question 4

Right to Exclude

when can the government permit a third party to seek contact with a child against the wishes of the child’s parent or parents?

Answer 4

• Emphasizes deference to parental judgment absent harm to the child.
• Parents have a fundamental right to care and control their children.

Question 5

Troxel v. Granville

what fundamental right is infringed upon in this case and why?

Answer 5

• fundamental right = the interest of parents in the care, custody and control of their children
• UMDA third party visitation statute is too broad, allowing any third party to seek visitation and subjecting a legal parent’s decision to state-court review is unconstitutional.
• the due process clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions simply because a “better” decision could be made

Question 6

Right to Exclude

What are the two bases non-parents can seek custody and visitation?

Answer 6

• two bases for non-parents to seek custody and visitation
  1. non-parents have consistently served as caretakers of a child, without expectation of compensation, and
  2. those who have a “substantial relationship with the child” and can demonstrate that the denial of custody or visitation would result in harm to the child

• also includes a rebuttable presumption that a parent’s decision regarding custody or visitation is in the child’s best interest;
• nonparents seeking custody or visitation must prove by clear and convincing evidence that the parent’s decision is not in the child’s best interest

Question 7

In re Parentage of L.B..

does a common-law de facto parent have the same legal rights and responsibilities as a biological or adoptive parent?

Answer 7

• support for recognition of de facto parenthood in common law
• state did not divest the court of its authority to hear the case
• the state promoted best interest of child and recognized the relationships between parents and children
• deference to fit parent doesn’t extend to who is a parent in the first case

Question 8

Third parties or parents

how can you prove de facto parent under Uniform Parentage Act

Answer 8

• that they lived with the child for a significant period;
• that they engaged in consistent caretaking of the child;
• that they undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation;
• that they held out the child as their child;
• that they established a bonded and dependent relationship with the child which is parental in nature;
• that another parent of the child fostered or supported the bonded and dependent relationship; and
• that continuing the relationship is in the child’s best interest.

Question 9

Third parties or parents

What’s the difference between legal parentage and guardianship?

Answer 9

• Legal parentage vs. Legal guardianship: can give rise to custody and decision-making authority, but it is not equivalent to legal parentage;
• case can grant guardianship over a parent’s. rejection where a parent is incarcerated, there is abuse or violence, etc
• guardianship over a minor’s person is not the same as legal guardianship over a minor’s estate (which gives control over finances/minor’s assets but no control over the minors person)
• also not the same as guardian ad litem (charged with protecting the interest of the minor in juvenile and family court minors, relevant for instance in contested custody cases)