6.02.2016

Can Fraud Bring Family Restoration?

When one parent defrauds the other by hiding the truth about their child, can that ever be good for a family? Even an adoptive family? An important family law case was decided by CO's Supreme Court earlier this year. Now on cert to the Supreme Court of the United States, the case In interest of Baby A, 363 P.3d 193 (2016) will have important implications for parental rights.
In Baby A mother lied to the father of her children when she told him she had a miscarriage, when instead she placed the children for adoption. The US Constitution protects the fundamental rights of parents to direct the upbringing of their children (Meyer, Pierce, Troxel, but see also the ICWA case of Adoption of Baby Girl, where SCOTUS did a similar bit of rule bending when a dad was not involved enough, according to the Court’s view, in the child’s life during gestation).  While the court in Baby A relied on a “presumption that biological parents have a first and prior right to custody of their children, but that presumption may be rebutted by clear and convincing evidence of certain statutory factors” (para 10) the court did not completely deal with the fundamental parental rights before it moved on to the statutory factors in determining custody.  This, however, has generally been the trend in how states have worked to expand parental rights to non-parents, or quasi parents. Rather than analyzing that fundamental parental right completely, the court moved on to the best interests of the child, and made a custody ruling. 
 
Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence is very important, but parental rights prevail over any custody decision.  I’ve also written about that in an immigration context here The law presumes that a fit natural parent will act in the best interests of his or her child; that presumption can only be overcome by a showing of clear and convincing evidence of parental unfitness. (Also see the article on that concern here
 
A father who has no knowledge of his child’s existence can’t very well be involved in their lives, as custody standards require.  Here, a father was constricted by the mother’s fraudulent actions.  When a state court has muddled the two separate issues of parentage and custody, constitutional protections a washed away.  Parentage must be determined before custody rules can be applied.  And in every state an adoption cannot happen without a termination of the rights of the natural parents.  That never happened in Baby A, and without that, adoptive parents’ rights never vest.  The father lost opportunity for custody by fraud alone, and his parentage was never analyzed or terminated.
 
Finally, concerns here surround what a court might view as “bad parents.” The court in Baby A said that “none of them were bad parents,” which made the case so difficult in their view.  Anytime a court or a hearing officer or a CPS worker has discretion to determine who is the “bad parent” without any guidelines for that judgment (i.e. neglect, abandonment, abuse, which all traditionally equal unfitness, resulting in termination of parent rights) anything goes down that slippery slope.  Here, it seems the court applied the statutory factors without fully analyzing that a constitutionally protected fundamental right has been passed over in favor of state statutory factors in determining custody. 
 
Clear and convincing evidence must be required to limit parental rights.  Family restoration is strengthened when constitutional protections are offered to protect natural parents until clear and convincing evidence of their unfitness is proved.  Fraud should not be used to keep a parent from his or her children, and it can never be the basis for family restoration.

1 comment:

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