The New York Times article about a man who has no legal rights to a child born of his live-in partner by in-vitro fertilization highlights a growing problem of parent’s rights. Recent cases have shown that the changing definition of family challenges the traditional understanding of a person’s rights and obligations to a child.
Essentially, a person cannot be a child’s actual parent unless it is through legal adoption or biology. Parenting rights are not acquired by living together, the number of diapers changed, trips to the park, birthdays celebrated or nights of homework. The right to be a child’s parent does not happen by default unless you have a biological connection to the child’s life. If not biologically connected, it is critical that a person who wants to be a child’s parent pursue the legal adoption process and secure the approval of a Court.
If named as a Guardian in a Will, a person can garner certain rights to a child along with certain obligations for their care, but they cannot be a “parent” through someone’s Will. In Massachusetts, the Probate Code permits a Court to appoint a Guardian for a minor child if: i) the minor’s parents are deceased or incapacitated; (ii) the parent’s consent; (iii) parental rights have been terminated; (iv) the parents have signed a voluntary surrender; or (v) the court finds the parents, jointly, or the surviving parent, to be unavailable or unfit to have custody. If appointed a Guardian, that person has the powers and responsibilities of a parent regarding the child’s support, care, education, health and welfare. A minor child age 14 or older has the right to object to a Guardian.
State courts are more and more challenged by the changing constitution of a family. Recent cases in Connecticut, and elsewhere, show the difficulties in juggling the rights of children to be cared for, the obligations of parents and their partners (regardless of sex or marital status), and the public policies created by each set of facts.
As for people thinking they are parents, the best way to ensure “ownership” of a child is to formally adopt.
Hindell S. Grossman, Esq.
Grossman & Associates, Ltd.