West Palm Beach Parental Rights Lawyer
Parental rights are fundamental in our society. This provides that no government or court will intervene in how a parent chooses to raise his or her child unless there is a threat of harm or it is not in the best interest of the child. When parents are married and together, usually these types of decisions are made together and a compromise is generally struck when there are disagreements. However, when a marriage has been dissolved, many of the issues that the couple did not agree on when they were married may rise to the surface and cause a ripple in the family dynamic. If you and your ex spouse are having a difficult time making decisions about the future of your children, it is important to speak with an experienced West Palm Beach parental rights lawyer.
Technology & Parental Rights
Generally there are always legal questions and concerns that arise when there is new technology that may alter the rights and obligations of those who utilize the new technology. Though technology and family are not traditionally seen together, the rise of nontraditional families has led to the use of surrogacy and in-vitro technology in order to create families in new ways. However, when surrogacy and in-vitro technology give rise to the creation of new families and in particular new life, sometimes there is confusion as to who has rights to the new child, when there are several people involved in the baby’s conception. Parental rights should be established as soon as possible; it is important to speak with an experienced West Palm Beach parental rights lawyer to advocate on your behalf to invoke your parents rights.
Preplanned Adoption Arrangement in Florida
In Florida, individuals may execute a preplanned adoption arrangement that will outline the rights and privileges of each of the members involved in the creation of the baby. Generally with pre-planned adoption agreements, the individuals involved are the commissioning parents and the volunteer mother.
What Must be Included in the Arrangement
To be effective, a preplanned adoption arrangement must include, but is not limited to, the following details:
- The type of fertility technique that both the volunteer mother and the commissioning couple agree to;
- That the volunteer mother agrees to the fertility technique and to carry the child to term, and then later terminate any parental rights and responsibilities to the child with written consent;
- That the consent of the volunteer mother to terminate parental rights and responsibilities is subject to rescission. The volunteer mother has up to 48 hours after the birth of the child to rescind the agreement, but only if the mother is genetically related to the child;
- That the volunteer mother, if genetically related to the child, must assume all the parental rights and responsibilities regarding the child if the intended parents terminate the agreement before child custody has been transferred over to them;
- That the agreement may be terminated in the event that the biological parent that is specified within the preplanned adoption arrangement is not actually the biological parent of the child conceived;
- That the volunteer mother must adhere to reasonable medical instructions about her prenatal health and must accept reasonable medical evaluations, interventions, and treatment that will contribute to the well-being of the growing fetus;
- That the potential parents may agree to pay all reasonable expenses that are legal, medical, psychiatric, or psychological for the volunteer mother as it relates to the preplanned adoption agreement, and may also agree to pay the lost wages and reasonable living expenses incurred by the volunteer mother resulting from her pregnancy and giving birth;
- That the intended father who is also the biological father will be required to assume parental responsibilities and rights in the event the agreement is terminated by the potential parents;
- That the potential parents acknowledge and agree that if the child is genetically related to the volunteer mother, that their parental rights may not come to fruition if the volunteer mother rescinds the agreement up to 48 hours after birth of the child; and
- That the potential parents agreed to take on parental rights, responsibilities, and custody for the child immediately at the child’s birth, regardless of any impairments or defects of the child.
What is Prohibited From Being Inserted into the Agreement
Within the preplanned adoption agreement, there may be no provisions inserted that require the following:
- The volunteer mother to terminate her pregnancy at any time and/or
- The amount paid to the volunteer mother that has previously been agreed upon is not reduced in any way or negatively modified in response to the child being born stillborn or born alive but with significant impairments or delays.
Parental Rights & Education
One of the most hotly debated issues with parents is educational opportunities for their children. Usually, parents may be at opposite ends of the debate when it comes time to deciding whether the children should be educated in a public school, private school, or homeschooled.
At the time of dissolution, there is an opportunity to discuss between the parents, going forward, the shared responsibilities and how decisions will be made. In theory, it is the hope of the court that parents will decide to look past their issues, they will co-parent, and make choices bilaterally. However, this may not always be the case. Where the parents are unable to come to a decision at the time of the dissolution, the court will generally review a few things:
- The best interest of the child;
- Who has a greater interest, passion, or educational background in the issue; and if relevant,
- What the status quo was before the dissolution.
In other words, if the child was attending a public school during the marriage, the Court may review whether this is the best learning environment for the child, whether either parent fees strongly about the issue, whether one parent has been taking charge of the educational decisions during the marriage, and finally, if the child is mature enough to provide a preference. At the time of dissolution, the age of the child may also be relevant. For example, homeschooling may be fine for a minor child who would be elementary-school aged, but as he or she becomes older, there may be socialization benefits for the child or increased educational opportunities at the local school.
Options for Integrating Your Decisions into the Co-Parenting Plan
For a parent who is passionate about education, whether it is regarding homeschooling or private/public school options, he or she is more likely to get his or her way if:
- He or she is able to write into the co-parenting plan that he or she will be responsible for the educational choices of the child;
- He or she is able to get sole responsibility of the child (which in Florida is generally unlikely since there is a presumption that active involvement of both parents is beneficial to the child); and/or
- He or she is able to show that the educational choice to either homeschool the child or send him or her to a school is in the best interest of the child, and that the child is thriving in this particular environment.
If you are a parent that is in conflict with your ex-spouse over the type of education that you want your child to receive, it is important to negotiate your co-parenting arrangement agreement at the time of dissolution so that educational choices either are delegated to you or this particular educational choice (to either homeschool or send your child to public/private school) is defined. This is because to amend a co-parenting plan to contain this negotiated status would be more difficult, if not impractical, at a later date, unless you are able to show a change of circumstance that would elicit a change for the best interest of your child.
Parental Rights & Religion
The rights and obligations of being a parent are considered in our society to be fundamental. For this reason, the law is not permitted to enter into this sacred relationship between parent and child, and permits parents to raise their children with any set of values and systems regardless of whether they are traditional, mainstream, or otherwise. It is also public policy, and the trend has been moving in this direction, for parents who decide to divorce to become co-parents and share equal time with the children. Co-parenting and equal time is important. You should speak with an experienced West Palm Beach parental rights lawyer who can help ensure that you are involved in all aspects of your children’s upbringing.
The Right to Co-Parent: The Best Interest of the Child
Studies have shown that children thrive when their parents share equal time make decisions together, even if they are no longer married. This trumps the old view that the shuttling of children back and forth between residential homes of parents was actually more traumatic for children, and that a single custodial parent was necessary. Because of the increase in research supporting that children who have both parents present in their lives are happier and more stable, Florida’s family law system incorporates this into its child custody requirements.
Co-Parent Plans
It is a presumption that both parents should have a role and parental responsibility in raising the children, and a co-parenting plan can help. It outlines the roles and responsibilities that each parent will have for the children, and which parent and when will make the decision about their well-being. When one parent is a doctor, it makes more sense that she or he may be in a better, more informed position to make decisions about the medical well-being of the child. When one of the parents is passionate about a child being raised with certain religious tenets, this is also evaluated and considered. Overall, parental responsibility, the co-parenting plan, and the determinations of how the children will be raised and who will make certain decisions are based on the “best interest of the child” test.
When Co-Parenting May Not be Feasible
For example, one parent may be unfit to parent either due to a physical, mental, emotional issue, or incarceration. This may not rise to the level of terminating his or her parental rights, but it may limit the custody rights of that parent, or even dictate whether visitation rights are more appropriate, or not at all. This determination is made based on whether the relationship is harming or threatens to harm the child.
Right of Co-Parent to Raise Children in Religious Practice and Belief
In a recent case tried in Florida’s family court, a parent’s religious views and his desire that the children be subjected to a specific religious dogma was under fire. There is a fundamental right for a parent to raise his or her children within a certain religious practice, and this falls under the free exercise of religious beliefs and practices which is protected by the First Amendment of the U.S. Constitution. In most courts, the right of a parent to raise a child within a religion is protected, except when clear and convincing evidence is presented to demonstrate affirmatively that the religious beliefs and practices are harmful to the child.
Limits: Where the Religious Belief/Practice is Harmful to the Children
According to the case, testimony and evidence were admitted that demonstrated that the children were being harmed by the religious activities of their father. One of the children suffered a psychotic episode that required hospitalization. The family counselor presented evidence that the religious beliefs were psychologically traumatizing the children, who were terrorized by the father with religious admonishments, demonization of the mother of the children, and threats of damnation. Ultimately the Court ruled that clear and convincing evidence was admitted to prove that the religious activities were harmful to the children, and therefore, a requirement that the father no longer discuss religious beliefs and practices with his children was not seen as a violation of his First Amendment rights or his rights to parent his children.
Terminating Parental Rights
In Florida, parents, meaning natural mothers and biological fathers, have rights regarding their children. This includes the right to make parenting decisions, such as healthcare or schooling decisions, the right to spend time with the child, and the right to decide who can see the child. Generally, parents have the right to make these decisions. But in some cases, the court steps in and terminates parental rights.
The state of Florida recognizes that it is generally best for a child to grow up with the influence of both parents. Thus, it is difficult for a person’s parental rights to be terminated. But in some situations, termination is appropriate. A West Palm Beach family law attorney can help you if you have an issue with parental rights.
Written Surrender
A written surrender is typically used in adoption cases. It is a written form, signed by the parent and two witnesses, and notarized. It means that a parent gives up any parental rights that he or she had. A surrender cannot be withdrawn unless a parent can show that he or she signed due to fraud or duress, meaning trickery or undue pressure.
Abandonment
A person’s parental rights may be terminated when the parent has not made any real effort to have a relationship with the child and has not made any substantial financial contribution to the child. Additionally, if the parent cannot be located for sixty or more days, his or her rights may be terminated.
Threats
A parent threatens a child’s welfare when he or she poses a risk to the child’s physical, mental, or emotional health. The threat must be a serious, continuing threat to the child’s wellbeing in order to justify terminating parental rights.
Incarceration
Generally, a parent’s rights are terminated because of incarceration when the parent is to be incarcerated for a large portion of the child’s life or when the parent has committed certain violent or sexual crimes. It may also occur when the parent demonstrates a pattern of behavior that indicates that he or she will likely be incarcerated for a significant portion of the child’s life. For example, a repeat offender’s rights may be terminated, even if the individual offenses have short sentences.
Adjudicated Dependent
When a minor is adjudicated dependent and the parents do not follow the case plan, their parental rights may be terminated. The court may find:
- Continuing abuse;
- That the parent has not made much progress on the case plan for twelve of the past twenty-two months; or
- Evidence that the parent will not be able to comply with the case plan.
Egregious Conduct
This includes conduct such as abandonment, abuse, neglect, or other similar behavior. A parent’s rights may be terminated when such conduct occurs, whether the parent committed it or another person did, if the parent did not take steps to protect the child. The conduct may also be against a sibling.
Other Children
The fact that a parent has had parental rights to other children terminated, or had other children involuntarily moved from the home, is grounds for terminating parental rights.
Adoption
A parent’s parental rights may be terminated for purposes of an adoption, if he or she:
- Signs a consent in front of two witnesses and notary;
- For fathers, signs an affidavit that he is not the child’s father;
- Does not respond to notice of the adoption;
- Abandons the child; or
- Is incapacitated, meaning that the parent is unable to care for him or herself because of physical or mental incapacity, often, when the parent is in a
- coma.
Parental Rights of Rapists? In Florida, There are None
In the United States, it is estimated, according to the National Conference of State Legislatures, that there are approximately 17,000 to 32,000 pregnancies annually that occurred as a result of sexual assault and rape. These statistics are considered fairly conservative, as the actual number is unknown due to the fact that a significant number of rapes are never reported. The number of these pregnancies that actually result in a baby is also unknown, but the decision to carry that baby to term is one full of fear, anguish, and stress.
Parental Rights are Fundamental
Parental rights are fundamental in family law, as protected by the U.S. and state Constitutions. However, a parental right is not an absolute right because at the foundation of the right is the “best interest of the child.” In Florida, “best interest of the child” reasoning dictates parental rights, custodial rights, and ultimately, who will be responsible for the love, care, and raising of the child. Parental rights are fundamental and should be protected at all costs. If your parental rights are being threatened, it is important to speak with an experienced family law attorney.
States Around the Country are Split on the Rights of a Rapist to the Child
The states of the United States are split as to the parental rights due to a father who raped a mother that led to the pregnancy and birth of the child. Generally, a biological parent has a strong and fundamental argument regarding his or her parental rights to a biological child. However, where rape is at the center of the issue, the statutory lines are unclear.
For states such as Alabama, Maryland, North Dakota, New Mexico, and Wyoming, there are no laws that protect a sexual assault victim from their rapist’s parental rights demands. As of September 2016, Arizona, Connecticut, Georgia, Hawaii, Indiana, Iowa, Maine, and Michigan put forward legislation to terminate parental rights of rapists. Florida, along with 42 other states including the District of Columbia, have some laws on the books to terminate the rights of rapists. However, almost half of these states require that to terminate the parental rights of a rapist, a criminal court must have already convicted the assailant for rape before entertaining a rape victim’s parental rights termination submission.
Florida Law Terminates Parental Rights of Rapists
Florida is one of the states that has legislation that strongly supports the rights of rape survivors. According to Florida’s statutes, a rape survivor may terminate the parental rights of his or her rapist if the court finds by clear and convincing evidence that the child was conceived through an act of sexual battery. The parental rights are terminated once clear and convincing evidence has been accepted by the court because of the “best interest of the child” reasoning. In the court’s view, if a child was begot as a result of an act of sexual battery, the termination of the parental rights of the rapist is presumed to be in the “best interest of the child.” There is not rebuttable presumption, though the rapist may try to appeal according to due process rights.
The law explicitly states that though the court and the state believe that reasonable efforts should be taken to preserve the family as a unit and as a value, but that the foundation of this principle lies in the “best interest of the child” and where this interest is not at the forefront of the argument, then the request shall fail.
Contact an Experienced West Palm Beach Parental Rights Attorney Today
If you have any questions about the parental rights of you or your co-parent, it is important to consult an attorney who can ensure that your best interests and those of your child are represented. Please call West Palm Beach family law attorney William Wallshein today for a free initial consultation.
