Mary Johnston: Family Lawyer Sandy Utah

Sandy Utah is a great place to raise your family. As a parent you have certain parental rights. Its important that you understand these rights so that you can protect them when someone or the state threatens to take way these rights from you. An experienced Sandy Utah family lawyer can explain to you your parental rights.

Although debates may rage as to when other aspects of parenthood begin, one thing is clear: Legal regulation of parenthood begins before conception (e.g., reproductive rights) and touches on matters ranging from transporting children (e.g., child safety restraint laws) to income taxation (e.g., deductions for dependents).

Traditionally, American law has viewed relationships between parents and their children from the perspective of the parents. The law has emphasized parents’ rights and interests, except when these might conflict with those of the state. At the same time, however, the law frequently purports to act in the best interests of children. That which is in the best interests of parents may not be in the best interests of children. Obviously, it is difficult to ascertain what is in children’s best interests when the law views family matters from the perspective of parents. In considering the sometimes competing interests of parents, children, and the state, courts and legislatures have addressed questions concerning definitions, rights, and duties of parenthood.

Who is the parent?

Generally, the law defines parenthood in terms of a relationship—a woman’s biological relationship to a child, a man’s marital relationship to a child’s natural mother, or a nonbiological relationship established by adoption or remarriage. Less commonly, the law may acknowledge an emotional or psychological relationship between people who are otherwise unrelated. Within these various definitions, both legal and social traditions stress the primacy of the nuclear family and the functions it fulfills in the lives of children.

One of the reasons for the complexities regarding the meaning of parent is that parents function in multiple ways in regards to their children. Parents biologically produce children. They provide the economic resources to sustain children. They prepare food for their children, do their laundry, transport them to activities, help them with homework, take care of them when they are ill, and obtain health care for them when needed. Parents form intense affectionate, highly interactive bonds with their children. Parents socialize their children; they inculcate the values of the majority culture— and sometimes minority cultural values as well—in addition to their own unique values, morals, and beliefs.

Biological Parent

The biological nature of parenthood has legal importance in establishing financial obligations for child support and presumptive rights to custody or visitation. When biological parents are in dispute with nonparents for the custody of children, the traditional view has been that biology is paramount. The biological parent always would prevail as long as the parent was considered “fit” and he or she had not abandoned the child previously.

The unwed father

If you are the father of a child but you are not married to the mother of the child, speak to an experienced Sandy Utah family lawyer. You have certain parental rights. The biological nature of parenthood also is considered in the law’s approach to the rights of unwed fathers, particularly whether they can block adoption proceedings instituted by the mother. Although biological ties historically have been given enormous weight in consideration of parental rights, they commonly have been recognized only when the father was married to the mother at the time that the child was born. The marital presumption, which has been accepted uniformly, assumes that a child born to a woman living with her husband is the biological child of the husband. Thus fatherhood status is conferred by means of the marital relationship with the birth mother. Because legal fatherhood arises from the marital relationship with the birth mother, the traditional view has been that unwed fathers have no rights whatsoever regarding their offspring. Before 1972, an unwed father could not stop the termination of his parental rights if the mother placed her child for adoption. In 1972 however, the U. S. Supreme Court held that unwed fathers did have some parental rights protected by the due process clause of the Fourteenth Amendment. In that case, an unwed father who had participated in the care of his child was held to be entitled to a hearing to determine his parental fitness before his parental rights could be terminated. The biological relationship is not sufficient, however, to sustain parental rights of an unwed father. An unwed father has to show that he has had an actual parental relationship with the child in order to obtain legal recognition of his interest in the preservation of that relationship.

Psychological Parent

The concept of the psychological parent was articulated three decades ago as a means of shifting the focus of custody disputes away from the rights of the biological parents to the best interests of the child, as manifested by the child’s need for stability and continuity with regard to relationships with significant others in the child’s life. The psychological parent may be a biological parent but is not necessarily so. Rather, the psychological parent is the individual who has fulfilled the child’s “psychological needs for a parent”.

Courts most commonly have raised the concept of the psychological parent when they were choosing between custodial arrangements offered by biological and nonbiological parents, particularly if they were attempting to justify refusal to award custody of a child to a biological parent. Some courts have awarded custody to a stepparent rather than to a biological parent if the stepparent has had a prior strong relationship with the child and is seen as more likely to fulfill the child’s need for stability and continuity. Another area of law involving the concept of psychological parenthood concerns adoption.

Legal Interpretation of Parental Roles

Despite the difficulties in defining a parent, doing so is important because legal recognition as a parent determines who may claim both rights and duties under a variety of laws pertaining to parent–child relationships. Although rights and duties vary across legal questions, such legal entitlements and obligations typically can be categorized according to the various roles parents assume under both social and legal custom. Parents may be described as authorities, providers, caregivers, protectors, and socializers. Parental privileges and responsibilities do not necessarily hold equal status across or within each role, however. For example, rights may take precedence over duties when parents function in the role of authority, but the reverse may be true when they function as providers.

In both legal and social realms, parents generally are recognized as having primary authority in all aspects of childrearing. Accordingly, pursuant to the protection of liberty under the Fourteenth Amendment, parents generally possess a right to rear their children without interference. For example, the Supreme Court has ruled that, absent a contrary compelling state interest, parents have a right to guide their children’s education.

Parent as Provider

As a general matter, simply stated, parents have a legal duty to provide for their children. This duty is based in part on the presumption that most children cannot provide for themselves adequately during their own childhood. The law, of course, is neither general nor simple. Specific questions emerge and the law must answer them. Some of these questions include: (1) Which “parents” owe such a duty? (2) To which “children” is such a duty owed? (3) What should be done when the presumption fails and children never will be able to provide for themselves (e.g., children with certain disabilities)? and (4) What should be done when children will be able to provide for themselves, but only after a period of continued dependency on their parents well into the children’s legal adulthood (e.g., adult children attending college)?

Support for minor children.

Of course, parenthood brings duties as well as rights. The duty to provide financial support and other necessaries, such as food and shelter, for children is rooted in parental rights. Historically, parents— especially fathers—have held rights to their children’s custody, control, services, and earnings. In return for such considerations, parents are expected to provide children with financial support in order to prevent the community from assuming the burden of financial maintenance.

Although they lose all or much of their control, noncustodial parents are not absolved of their duties as parents. In fact, their obligations may be specified more clearly than any control or rights they retain. In contrast, custodial parents retain their control rights whereas they remain relatively free of state-imposed standards for support. Thus, for them, the connection between their duty to support and their right to control remains intact.

Stepparents usually are not held legally responsible for the financial support of their step-children.

Support for emancipated and adult children

The responsibility to provide for the support of a child does not persist in perpetuity. Another problem involves the determination of the point at which such responsibility ends. Although this transition typically occurs at the age of majority, it can occur earlier if the child is emancipated or later if the child is disabled.

The duty of parental support is based on a child’s inability to support him- or herself. Because complete emancipation relieves a parent of financial obligations, courts and legislatures are generally conservative in determining emancipation of a minor child.

There also is typically no bright line standard to determine whether parents have a financial obligation to their adult child, but such a duty generally applies where an adult child is incapable of self-support because of mental or physical disability.

Inheritance

To some degree, parents continue as designated providers even after death. In every state, intestate laws provide for some share of a parent’s estate to go to his or her children when that parent has failed to leave a will. In such situations, all siblings receive an equal share, regardless of age or other limitations on earning power.

Although provision of support after the death of a parent may be expected by the law, such support generally is not a duty. When a parent has drawn a will, every state allows parents to disinherit children, making no provision for them after the parent’s death. No such mechanism for disinheritance exists for spouses, however, so that some level of protection may remain for children who are not listed as intended beneficiaries in the deceased parent’s will.

Parent as Caregiver

Of course, children need more than financial support. The law supports and values the performance by parents of numerous caregiving activities on behalf of their children.

Parental consent to treatment

Parents’ rights in executing their health caregiving authority are established in parental consent requirements for treatment. Parental consent is required in most situations involving medical treatment and nonemergency treatment of children, and such treatments that have not been authorized by parents have resulted in successful lawsuits.

State-ordered treatment

The State of Utah does intervene in specific situations regarding young children (as well as older children) when parents fail to provide necessary medical treatment to a minor child, even if the reason for the failure is the parent’s religious beliefs. There is considerable legal authority for states to remove children from the custody of their parents in order to obtain necessary. Courts do so through their parens patriae power—the authority and duty to act in the place of the parent to protect the interests of the child.

Becoming a Parent

Every child’s first parents are the ones who create him, and their first act as his parents is to do so. On one view, that act is completed at the moment of conception. Carrying the child to term and giving birth are later acts of parenthood that are performed after the creating is done. On a different view, creating a child takes a good deal longer.

A second way to become the parent of a child is by adoption. That confers the same rights and responsibilities as creating the child, as long as no one’s rights are violated in the process. The child must be “available for adoption,” and must be given up without coercion. When that restriction is satisfied, the adoptive parents are in exactly the same position as the biological ones were where their moral standing in the child’s life is concerned. They differ only in the way in which they came to have that standing.

It is also possible to become the parent of a child informally, by joining the child’s other parent in this role. As with biological parenthood and adoption, the “joining” can’t be achieved through coercion or some other violation of rights, but when the other parent freely gives permission it is a third way to obtain the same rights and obligations that a biological parent has.

Before you start the process for adoption of a child, speak to an experienced Sandy Utah family lawyer to know your rights as an parent of an adopted child.

Sandy Utah Family Law Attorney Free Consultation

When you need legal help with a family law case in Sandy Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with Divorce. Child Custody. Child Support. Modification of Custody Order. Modification of Divorce Decrees. Qualified Domestic Relations Orders (QDROS). Legal Separation. Alimony. Prenups. Post Nups. Guardianships. Conservatorships. And Much More. We want to help you.