In Whose Best Interest? When the Best Interest of the Child Conflicts with a Parent's Best Interest

In Whose Best Interest? When the Best Interest of the Child Conflicts with a Parent's Best Interest
by Debra Finch, Debra M. Finch, P.C., Athens, Georgia

As a Guardian Ad Litem, I see a wide range of parenting time schedules. Under some schedules, a child may bounce from household to household every two to three days (often referred to as a "suitcase child"); under others, a child may not see the other parent for two weeks. It is very important in creating a parenting time schedule that the parents consider the developmental needs of the child and how those needs may change in the future.

For infants and very young children, for example, I often examine the parenting schedule prior to the parents' separation. If both parents played an active role in the day-to-day care of a young child, a schedule which disrupts that relationship by limiting one parent's involvement may adversely affect the child's attachment and bond to that parent.(See Lamb, M. E., & Kelly, J. B. (2009). Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. Galatzer-Levy, L. Kraus, & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (2nd ed., pp. 187–214). Hoboken, NJ: Wiley).Conversely, removal of a child from a parent who has been the primary caregiver may be stressful for the child.

In crafting a parenting time schedule, a critical consideration will be the relationship between the parents. Co-parenting between high conflict parents is extraordinarily difficult and often causes additional stress on the children. Courts are reluctant, I have found, to implement custody arrangements and schedules which require frequent communication and contact between high conflict parents. (Custody evaluators and Guardians Ad Litem must be careful to deliniate between situational conflict, such as litigation, which may cease at the conclusion of the case, and high conflict parenting, which will continue after the litigation ends).

High conflict parents are often unable to reach a parenting time agreement, requiring a judge to craft a parenting schedule for them. I have found that in the absence of agreement, courts often implement an alternating-weekend schedule with exchanges taking place at school, for example, in order to limit parental contact.  Judges do not want to impose schedules which require frequent parental contact and communication because such schedules may cause additional stress for the child. Exchanges can be extraordinarily difficult when the parents are hostile and inclined to argue in the child's presence.

Unfortunately, the crafting of a parenting schedule can degenerate into a power struggle between the parents, and the needs of the child can be ignored. Often one parent will demand a parenting schedule that provides him or her no less than 50 percent of the parenting time with the child, regardless of how much time that parent has spent with the child in the past. For those parents, the parenting time schedule it is more about what is "fair" to them. They simply cannot understand how any child could benefit from an arrangement which gives one parent greater time with the child.  For other parents, it is very important to have a piece of paper that says "50-50", although it may not reflect the reality of the arrangement. Some parents literally count days with the child and refuse to accept a schedule in which their time with the child does not exceed the other parent's time.  For a limited number of parents, a motivating factor in the creation of their parenting plan is the level of child support he or she may have to pay, reasoning that the more parenting time they are granted, the less support they will be ordered to pay.

A parent's proximity to one another will be a decisive factor in a parenting plan. Geographical separation can limit, or completely eliminate, the possibility of co-parenting. In those situations, it may be important for parents to create a parenting plan which utilizes technology (e.g., FaceTime, Skype) to maintain the non-resident parent's presence in the child's life.

These are just a few scenarios that come up in crafting parenting plans. Clearly, there are no one-size-fits-all parenting plans; however, the primary consideration should always be what is in the best interests of the child, not the parents.

Is Three Really a Crowd? Expanding the Number of Legal Parents.

Is Three Really a Crowd? Expanding the Number of Legal Parents.

By Debra M. Finch, Debra M. Finch, P.C.

Should children have more than two legal parents?  Most states, including Georgia, recognize only two legal parents: a mother and a father. But as non-traditional families become more and more prevalent, legislatures and courts in some states, such as California, have expanded parentage to include three parents and, in some cases, even four.   

The desire to expand the number of legal parents often arises in the context of same-sex relationships where there may be a legal mother and a biological father, along with a non-legal/non-biological partner who serves as a “functional parent”, co-parenting the child and supporting the child emotionally, financially and socially. By awarding legal recognition to a functional co-parent, proponents argue that it lessens disruption of that relationship in the child’s life in the event the legal parent(s) become unavailable to care for the child.  

Legislation in California expanding the number of legal parents was introduced after a California juvenile court ruled that a child had three legal parents: the married lesbian couple who was raising her and the child’s father. 

The California case arose when one of the lesbian mothers was hospitalized and the other was jailed. The child was placed in foster care and the child’s father petitioned for custody, which was denied by the Department of Family and Children’s Services, ruling that a child could have only two legal parents (the married lesbian couple) and could not have a third (the father) under California law. 

The juvenile court, however, disagreed, ruling that the child had three presumed parents: the child's biological mother, the child’s presumed mother because she and the child's biological mother were married when the child was born, and the child's presumed father who promptly came forward and demonstrated his commitment to his parental responsibilities. The California appellate court, however, reversed the juvenile court’s decision in IN RE: M.C., prompting the introduction of legislation granting recognition of more than two legal parents. 

In an amicus curaie brief filed by the Children’s Advocacy Institute in IN RE: M.C., the group stated:

“Given the complexity of so many relationships through which children are brought into this world, it would not serve the best interests of children to broadly declare that no more than two adults are entitled to parental rights vis-à-vis any one child. In addition to unfairly requiring a court to cancel out the rights of a person who has otherwise met one of the legal thresholds for establishing parental rights, such a holding would detrimentally impact the ability of children to form and cultivate relationships with their own family members (biological or otherwise). Courts must be allowed flexibility to consider the unique factual circumstances presented in each case, and to recognize and respect the rights of all such individuals who can establish a legally cognizable parental relationship to a child.”   

The desire to expand parentage to include a third parent is not limited to situations involving same-sex couples. It also comes up in the context of heterosexual couples, such as when a stepparent seeks to adopt his spouse’s child from a previous marriage.

A traditional stepparent adoption may not be an option, particularly when the child has some relationship with the non-custodial legal parent.  A stepparent adoption typically involves termination of parental rights, which is often an issue that involves litigation. If an option existed which allowed for adoption (or the recognition of the stepparent as a legal parent) without the termination of the non-custodial legal parent’s parental rights, it might satisfy all concerned without the need for litigation.

Such an approach might also offer the child some protections in the event of the death of the stepparent’s spouse. Under current Georgia law, when a custodial legal parent dies, physical custody is typically transferred or assumed by the non-custodial legal parent and the decedent's spouse has no rights to the child. In situations where a legal non-custodial parent has been largely absent from a child’s life, a sudden disruption of the child’s relationship with a stepparent who has functioned in a parental role may not be in the best interests of the child.   

Opponents of allowing more than two legal parents argue that such an expansion will cause more chaos and conflict in the event of the dissolution of the partnership/marriage because custody, visitation and support issues must be determined between three or more parents, instead of the traditional two parents. Additionally, expanding parentage would also expand other areas of the law, such as intestate succession.   

Cases in which courts have awarded parenting time to a functional non-legal parent seem to turn on the intent of the parties in establishing the functional parent’s relationship with the child and the best interests of the child, recognizing that best interest may not always be determined by a child’s DNA. Legislatures and courts will likely employ a similar analysis in determining whether to expand the number of legal parents.  

   

The definition of a parent has changed dramatically in the last ten years. There seems to be recognition by some courts and some legislatures that a non-legal parent’s involvement in a child’s life is a significant factor to be considered when determining the child’s best interests.  As the traditional view of parentage broadens, we will likely see more courts and legislatures addressing the issue of whether a child can have more than two legal parents.

Welcome to Family Law Matters

Welcome to Family Law Matters, a blog by Debra M. Finch, a Georgia attorney, who will share her thoughts on issues involving family, child advocacy, and adoption law.