Themis Family Law - Relationship Between Family and State

----Adoption----

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---Basics of Adoption---

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Adoption Defined

Prior parent-child relationship is terminated; a new parent-child relationship is created

Effects of Adoption

Biological parents have no right to visitation unless the parties agree otherwise

Dissolving Adoptions

Adoptions may not be dissolved, except in cases of undisclosed mental or physical illness—even then, courts will decide based on:

1. The child's needs

2. The parents' motives

3. The length of the parent-child relationship

Sealed Records Regarding Adoptions

Records are sealed, except with regard to the birth parents' medical histories.

When a Child Must Consent to Adoption

In most states, if the adopted child is over a certain age (12 or 14), then the child must consent to the adoption.

Investigation for Approval and Denial of Adoption

After a thorough investigation regarding the fitness of the adoptive parents, courts either approve or deny it.

When a Court May Waive Investigation

Courts may waive investigation if the adoptive parents are close family members of the child

Payments for Adoption Prohibited

The law prohibits payments to the biological parent for the adoption

---Voluntary Termination of Parental Rights---

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Ability to Terminate Parental Rights

Biological parents may voluntarily terminate their rights and consent to the adoption.

When Can Consent to Termination May Be Withdrawn

Prior to a final decree, the parents' consent may be withdrawn with court approval.

When Consent to Termination May Not Be Withdrawn

After the final decree is entered, no withdraw of consent is allowed.

---Involuntary Termination of Parental Rights---

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When Involuntary Termination May Occur

Typically occurs as part of an abuse or neglect case

Requirement for Involuntary Termination

The state must prove by clear and convincing evidence that one of the state's statutory grounds for terminating parental rights is present, including:

1. Abuse or neglect of the child;

2. Abuse of the child's sibling;

3. Termination of parental rights with respect to the child's sibling;

4. Incapacity;

5. Abandonment; or

6. Placement of the child outside the home and not with a relative (e.g., foster care) for 15 of the past 22 months, and reunification attempts have failed.

---Termination of Parental Rights and Unwed Fathers---

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--Notice and adoption registries--

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Effect of Registering on an Adoption Registry

A man who registers with the relevant state registry will receive notice of the adoption.

Effect of Failing to Register on an Adoption Registry

Failure to register waives any right to receive notice, and any potential parental rights are terminated.

Right to Object

An unwed father has the right to object to an adoption, but only if he has demonstrated a commitment to the responsibilities of parenthood.

----Assisted Reproductive Technology----

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---Artificial Insemination and IVF---

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--Definitions--

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Artificial insemination

A woman uses donor sperm, or her husband's sperm, to get pregnant through a medical procedure

In vitro fertilization

Fertilization occurs outside the woman's body, and the fertilized egg is then implanted into the woman's uterus

--Determining the Legal Mother in IVF--

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Determining the Legal Mother in IVF

- The woman who gives birth to the child

- Egg donor = is not a legal parent

Determining the Other Legal Parent in IVF

1. If the mother is married and her spouse consents to the procedure, the spouse is the other legal parent.

2. Sperm donor = is not a legal parent

Inheritance in IVF

If the woman's husband provides the relevant sperm with the intent to be a co-parent, and dies before the procedure, he is not a parent unless in writing he said otherwise.

---Gestational Surrogacy---

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Gestational Agreement

woman (gestational mother or surrogate) agrees to carry a pregnancy for a person or a couple who intend to parent the child.

1. Not allowed in all states

State Rules for Gestational Agreements

In states where allowed, parties must get court approval of the gestational agreement for it to be enforceable.

Can a Gestational Surrogacy Agreement Limit the Surrogate's Rights to Make Mecial Decisions

No, cannot limit surrogate's rights to make medical decisions

Consideration

Consideration (payment for the surrogate) must be reasonable - no excessive

Termination of Gestational Agreements

Can be terminated for cause at any time before the surrogate becomes pregnant

Legal Parents in Gestational Agreements

1. Birth mother (surrogate) = is not the legal mother

2. Intended parents = legal parents

---Frozen Embryo Disputes---

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How Courts Handle Frozen Embryo Disputes

1. If the couple signed an agreement indicating what would happen to the embryos upon divorce, courts will generally enforce that agreement.

2. If no agreement exists, courts will balance the interests of the parties.

----Domestic Violence----

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---Protective Orders---

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Protective Orders

Every state has some type of statute allowing certain persons to obtain a protective order in case of domestic violence.

--Definitions Re Domestic Violence--

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Domestic violence

typically defined as physical abuse

Protective orders

Victims typically appear ex parte and obtain a more limited temporary order, then after notice and a hearing the court can implement a more permanent order

--Nature of protective orders--

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What Protective Orders May Include

Orders may include:

1. An injunction prohibiting further abuse

2. Prohibition on all contact

3. Grant of exclusive possession of the house to the victim

4. Definition of custody and parenting time

Duration of Protective Orders

Depending on the state, protective orders can last one year or for an indefinite time.

Effect of Violating a Protective Order

Violating a protective order is criminal and can result in fines or jail time.

--Who can obtain a protective order?--

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Relationship Requirement for Protective Orders

Most states require the perpetrator of the violence to be in a relationship with the victim, or a family member, or a household member.

Who Can Obtain a Protective Order

1. Spouses

2. Former spouses

3. Children

4. Unmarried co-parents

5. Other members of the household

6. Other family members

7. Some states allow people in dating relationships to obtain protective orders.

---Effects on Custody---

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Consideration of Domestic Violence When Determining Custody

Nearly all states require courts to consider domestic violence when determining custody.

Rebuttable Presumptions Against Awarding Custody to An Abuser

Some states have created rebuttable presumptions against awarding custody to the abuser.

----Rights and Obligations of Children----

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---Capacity for Contracts and Wills---

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What Minors Cannot Do

1. Cannot write wills

2. Can convey property and enter into contracts

- Have the option to disaffirm contracts at the age of majority

---Right to Consent to Medical Care---

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Variations

Varies depending on the state, the age of the minor, and the medical procedure

General Rules for Minors' Rights to Medical Care

1. Minors can usually consent to abortions, treatment of STDs, and birth control.

2. Minors over a certain age may be able to consent to other medical care if they are sufficiently mature.

---Liability for Torts and Criminal Acts---

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Criminal acts

minors are subject to juvenile courts and laws (often more lenient)

Torts

minors are judged by a more lenient standard than adults

---Emancipation---

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When a Child Can Petition for Emancipation

If the child is self-supporting and not living with parents, the child may petition for a decree of emancipation.

After Emancipation

1. Child no longer considered a minor.

2. Parents no longer have a duty to support the now-emancipated child.

Marriage and Emancipation

Typically, a minor who gets married is considered to be emancipated