Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview

CHAPTER ELEVEN
Child Rights to Custody,
Family Support and Emancipation

A. CHILD CUSTODY

1. In General

Questions about child custody arise in a variety of contexts: adoption, divorce, abuse, parental death, incapacitation, or abandonment. The question of who is the parent or guardian or custodian of a child may evolve from proceedings in general civil, probate, family, or juvenile court departments—each subject to its own rules.

One of the most important differences between the respective types of courts adjudicating child custody issues is the representation of the child. Commonly, a child has no separate counsel in general civil, probate, or family court—even where his or her rights and future are at issue. Children are generally given a guardian ad litem in juvenile dependency court—which can assume civil jurisdiction over allegedly abused or neglected children for their protection. Federal law requires such an appointment to receive child welfare funds from the Congress. Increasingly, such appointees are attorneys. In practice, parents are assured of counsel in juvenile dependency court where their basic right to parental status is implicated. They receive an attorney at public cost if they are indigent (see below).


2. Paternal Assertion of Parental Rights

Paternal rights are most commonly litigated in family court, where child support orders may be framed obligating biological or otherwise liable fathers to support children as part of a marriage dissolution proceeding. With marriage, the involvement of the family court in arranging for child custody upon divorce creates a system for tracking parental rights and maintaining some parental role upon the separation of parents. Apart from this divorce/custody circumstance is the difficult problem of paternal status where the birth is to an unwed mother. As discussed in Chapter 2, 30% of current births are to unwed mothers, with numbers of such births increasing from 243,000 in 1960 to over 7 million by 2006. Here, assertion of paternal rights may take the form of a refusal to consent to a child's placement for adoption as sought by the child's mother, an attempt at visitation or some continuing role in the life of the child, or even full custody. This difficult context has raised emotional issues in highly publicized cases where adoptive parents were compelled to return children to the biological father even when the unwed mother had supported adoption by others. On occasion, such custody

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