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Daycare Center and Family Home Forum>I Know This Has Been Said Over and Over Again But....
Max 09:17 AM 11-01-2016
I know this has been talked about over and over again on other threads but I thought maybe others can read this and chime in and clarify...
Very recently my husband and I began going through the adoption process for DH to adopt my son (who he has been raising since he was a baby). I have a court order for child support from the birth dad but nothing in regards to custody or visitation or termination of birth dad's parental rights.
We paid a hefty fee to meet with one of the (allegedly) best family lawyers in MN and we were told (I'm paraphrasing here) that our state automatically grants/favors birth mothers sole physical custody until the court establishes otherwise. Now I'm sure I'm off on the wording but the message was the same. I asked over and over again to clarify cause this was a big deal to me!
Meaning that, even if birth dad would not consent to my husband adopting our son and we lost our case, and birth dad's rights were not terminated - I have no legal obligation to allow birth dad to see my son. Not until birth dad takes me to court and an order is established regarding visitation/custody.
Maybe this is a little different than what has been discussed here on the forum, as far as always allowing a parent to access their child unless a court order says otherwise.. but it sounds to me that legally, birth moms may have rights (depending on your state) to restrict the birth dad from accessing the child without a court order. Maybe I'm totally wrong here. Maybe there are other factors the lawyer didn't mention. Just how the two pieces seem to fit together to me.
I'm not saying it's necessarily right. I'll see if the lawyer we ended up hiring can give input on this.
On another note..
I totally understand providers not wanting to get in the middle. It can be ugly and crazy.
I don't blame you.
For me though, it made a world of a difference having a provider who was willing to call me if birth dad were to have shown up. Birth dad was unpredictable (on methamphetamine), had a criminal history, and hadn't seen my son in almost a year by the time he started care. Legally speaking, his rights were not terminated. It's very difficult to terminate parental rights without having a suitable parent willing to take their place, so I was not in a very good position to get that ball rolling at that time. It ended up never being an issue. But if he had ever shown up to get my son, it could have been bad. Court orders take time, money, and are not easy. Our legal system is not perfect. (I could get really deep here - you may say well, not my fault, shoulda known better who to procreate with. Yes, I should have. I was young and naive. He wasn't on meth at the time but he wasn't a good person either. But my son's safety shouldn't be jeopardized b/c of a past mistake I made. I can't predict what other people may do.)
I want to say she may have even agreed to not release my son to birth dad, which would line up with what the lawyer told me a few months ago.
Before everyone jumps on her for doing something illegal, I'm not 100% sure she said that... but I do seem to recall a convo with her and her bf in which we were discussing these laws in MN and how they do favor birth moms right off the bat...
Plus, the preschool my son is at immediately put birth dad on a 'do not release' list when we told them we were initiating a case for adoption and we weren't sure how birth dad may react. This was without a court order establishing any custody, termination of rights, visitation, etc.
I respect a provider's decision to stay out of things and acknowledge there are very good reasons for it. But, if you are a provider willing to do what mine did, it makes a huge difference to some parents!
Anways, whew! Sorry for such a long post! Just some food for thought
Very recently my husband and I began going through the adoption process for DH to adopt my son (who he has been raising since he was a baby). I have a court order for child support from the birth dad but nothing in regards to custody or visitation or termination of birth dad's parental rights.
We paid a hefty fee to meet with one of the (allegedly) best family lawyers in MN and we were told (I'm paraphrasing here) that our state automatically grants/favors birth mothers sole physical custody until the court establishes otherwise. Now I'm sure I'm off on the wording but the message was the same. I asked over and over again to clarify cause this was a big deal to me!
Meaning that, even if birth dad would not consent to my husband adopting our son and we lost our case, and birth dad's rights were not terminated - I have no legal obligation to allow birth dad to see my son. Not until birth dad takes me to court and an order is established regarding visitation/custody.
Maybe this is a little different than what has been discussed here on the forum, as far as always allowing a parent to access their child unless a court order says otherwise.. but it sounds to me that legally, birth moms may have rights (depending on your state) to restrict the birth dad from accessing the child without a court order. Maybe I'm totally wrong here. Maybe there are other factors the lawyer didn't mention. Just how the two pieces seem to fit together to me.
I'm not saying it's necessarily right. I'll see if the lawyer we ended up hiring can give input on this.
On another note..
I totally understand providers not wanting to get in the middle. It can be ugly and crazy.
I don't blame you.For me though, it made a world of a difference having a provider who was willing to call me if birth dad were to have shown up. Birth dad was unpredictable (on methamphetamine), had a criminal history, and hadn't seen my son in almost a year by the time he started care. Legally speaking, his rights were not terminated. It's very difficult to terminate parental rights without having a suitable parent willing to take their place, so I was not in a very good position to get that ball rolling at that time. It ended up never being an issue. But if he had ever shown up to get my son, it could have been bad. Court orders take time, money, and are not easy. Our legal system is not perfect. (I could get really deep here - you may say well, not my fault, shoulda known better who to procreate with. Yes, I should have. I was young and naive. He wasn't on meth at the time but he wasn't a good person either. But my son's safety shouldn't be jeopardized b/c of a past mistake I made. I can't predict what other people may do.)
I want to say she may have even agreed to not release my son to birth dad, which would line up with what the lawyer told me a few months ago.
Before everyone jumps on her for doing something illegal, I'm not 100% sure she said that... but I do seem to recall a convo with her and her bf in which we were discussing these laws in MN and how they do favor birth moms right off the bat...
Plus, the preschool my son is at immediately put birth dad on a 'do not release' list when we told them we were initiating a case for adoption and we weren't sure how birth dad may react. This was without a court order establishing any custody, termination of rights, visitation, etc.
I respect a provider's decision to stay out of things and acknowledge there are very good reasons for it. But, if you are a provider willing to do what mine did, it makes a huge difference to some parents!
Anways, whew! Sorry for such a long post! Just some food for thought
Cat Herder 09:25 AM 11-01-2016
I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.
Definitely talk to the lawyer, again.
Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.
Definitely talk to the lawyer, again.
Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.
Max 09:38 AM 11-01-2016
Originally Posted by Cat Herder:
I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.
That's where I think it gets muddy. Parental rights establish the parent-child relationship. If you lose your parental rights, then you are no longer the legal parent/guardian of that child. I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.
But of course, the child can reach out to the birth parent when they are older I suppose.
I actually did a research paper arguing the ways in which our legal system is flawed by favoring parental rights instead of focusing on what the child's rights should be. This is why reunification is almost always the #1 goal of foster care.
daycarediva 09:39 AM 11-01-2016
Originally Posted by Cat Herder:
I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.
Definitely talk to the lawyer, again.
Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.
Yes. I had a dcb with a father in prison. Mom had sole custody. Dad wasn't on ANY information. He came to pick up dcb one day. I refused to release him. He was a stranger to me. He was a stranger to dcb. He wasn't on any pick up list. He came back with paperwork and the police the following day but dcm had kept him home until she could work it out in the court. I legally would have HAD to release him to the father. I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.
Definitely talk to the lawyer, again.
Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.
Until rights are terminated (or there is a court order on file), regardless of who has custody, I HAVE to release a child to his/her parent if asked to.
Max 09:43 AM 11-01-2016
Originally Posted by daycarediva:
Until rights are terminated (or there is a court order on file), regardless of who has custody, I HAVE to release a child to his/her parent if asked to.
See that's where I'm wondering if there are different laws at play. Until rights are terminated (or there is a court order on file), regardless of who has custody, I HAVE to release a child to his/her parent if asked to.
Like a birth mom may have sole physical custody (w/o any court orders) and deny a birth dad visits, but regardless, a provider must still release the child to the birth dad.
It seems like they go against each other but eh, wouldn't surprise me.
Cat Herder 10:21 AM 11-01-2016
Originally Posted by Max:
See that's where I'm wondering if there are different laws at play.
Like a birth mom may have sole physical custody (w/o any court orders) and deny a birth dad visits, but regardless, a provider must still release the child to the birth dad.
It seems like they go against each other but eh, wouldn't surprise me.
I understand it different. See that's where I'm wondering if there are different laws at play.
Like a birth mom may have sole physical custody (w/o any court orders) and deny a birth dad visits, but regardless, a provider must still release the child to the birth dad.
It seems like they go against each other but eh, wouldn't surprise me.
If the birth mom does not have a court order saying so, she does not have sole custody. She may have literal "physical" custody, but not legal sole custody.
She has no legal right to withhold the child from the other parent. Her only power lies in the father believing she does. If he picks up the child from daycare, he can also withhold the child while filing for a temporary hearing.
If called, the police could give the child to which parent was acting the most stable at the time of the call. It is the most rational approach. They don't want to be involved in family court matters.
Without papers, both parents are of equal legal standing.
Max 11:02 AM 11-01-2016
Originally Posted by Cat Herder:
She has no legal right to withhold the child from the other parent.
That's the exact opposite of what the family lawyer said. I was told I have no legal obligation to allow any visits. She has no legal right to withhold the child from the other parent.
Originally Posted by Cat Herder:
Without papers, both parents are of equal legal standing.
Based on what I was told, that's not true. At least, not for my state.Without papers, both parents are of equal legal standing.