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Termination of Parental Rights

Parental rights are not inalienable. Courts may terminate a parent's rights regarding a child if it is determined that the parent is unfit. In limited circumstances, a person may voluntarily relinquish his or her parental rights. The standards for proving a case for terminating a parent's right are stricter than the standard for establishing those rights. While a court may determine paternity based on a preponderance of the evidence, the state must prove a parent's unfitness by clear and convincing evidence because of the importance attached to a person's right to be a parent. Unfitness is also narrowly defined as a physical or psychological threat to the child. This is in contrast to the "best interests of the child" standard used to decide which parent gets custody of the child in a divorce. It is not enough for the state to show that the child would be better off if a parent's rights were terminated. The state must show some fault on the part of the parent.

Since a parent's duty to support a child ends with a termination of that parent's rights, the states generally allow parents to waive their parental rights voluntarily only when they are putting a child up for adoption. Parents may waive their parental rights implicitly by abandoning the child. This is most commonly done by the fathers of illegitimate children, but it is increasingly common among mothers with AIDS or who are addicted to drugs. The state must still bring a formal termination proceeding, but it has a lower burden of proof than in a termination based on unfitness.

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he "act[s] as a father toward his children." But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. "[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in 'promot[ing] a way of life' through the instruction of children as well as from the fact of blood relationship."[160]

The implications of this holding extend beyond the termination of the rights of an absent father. By emphasizing the importance of the familial rather than the genetic relationship, the court also provides a hint about how it might analyze a contest between a birth mother and an embryo donor. A bias in favor of the birth mother would be consistent with the Supreme Court's determination later in this case that the law at issue did not violate the equal protection clause. The father argued that the law gave the mother's rights more protection than it did those of a putative father. The Court found that the statute protected all parents with a real, custodial relationship with the child. The mother's interests were protected because she gave birth to the child and took care of her after birth, not because she was the biological mother.

When a court grants a divorce, it also determines who gets custody of the children. States differ in the extent of the parental rights remaining to the noncustodial parent. This can pose problems when getting consent for the child's medical care. Even states that generally allow the noncustodial parent to consent to medical care for the child allow the court to deny the noncustodial parent the right to make decisions for the child.

Physicians should find out the applicable rules for their state. If the state does not allow the noncustodial parent to consent to or direct the child's medical care, the physician should ask custodial parents their wishes. If the custodial parent wants the noncustodial parent to be able to obtain medical care for the child and there is no court order to the contrary, the custodial parent should sign a delegation of authority to consent to the child's medical care. (See Chapter 11.) In all states, the physician should ask the custodial parent if there are any court-ordered limitations on the rights of the noncustodial parent. If a pregnant woman is divorced during the course of the pregnancy, the courts will sometimes make a determination of paternity as well as custody of the child. A physician should handle this the same way as any other child of divorce.

[160]Lehr v. Robertson. 463 U.S. 248 (1982).

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