The Rights of the Parent and Child in a divorce

Parents and children have legal rights and obligations based upon the parent-child relationship. The law governs:

* how a parent-child relationship is formed
* how a parent-child relationship is terminated

Legitimacy and Illegitimacy of Children

Traditionally, a child who was born outside of a marriage was deemed by the law to be illegitimate, or to use the technical term "a bastard". Both terms have lost favor in the law. In most states, a child is considered the "legitimate" child of his or her parents regardless of their marital status. The United States Supreme Court has held that it is unconstitutional for a state to discriminate against individuals on the basis of their illegitimacy.

Usually, a child’s parentage is determined biologically. In other words, you are the child of the mother who gave birth to you and of the father who impregnated your mother. However, in some cases, parentage is determined by other circumstances. For example, a child born to a married woman is presumed to be the child of her husband. In some states, this presumption may be irrefutable if the husband elects to accept the child as his own, even though the child can be proved to be the biological descendant of another person. This means that the law assumes conclusively that the child of the wife is also the child of the husband for legal purposes.

Artificially-Assisted Conception

Recent developments in artificially assisted conception have raised interesting questions about parentage.

It has been broadly accepted that a child born through artificial insemination of a married woman with the consent of her husband is the legitimate child of the husband. This is so even though the consenting husband may be genetically unrelated to the child. Exceptions to this rule have occurred where the child was not intended by the parties to become a child of the marriage of the husband and the wife. For example, a wife may carry a child for another individual as a surrogate mother, not intending to keep the child after birth.

In surrogate parenting cases, the courts have had difficulty in deciding parental rights when the agreement between the parties breaks down. In the well-known Baby M case, the court treated the surrogate mother and biological father as the parents of the child and rejected the claim of parental status by the father’s wife.

Still more complex questions have arisen in the context of egg donation, gamete transfer, and other similar situations. Although genetic connection is the usual starting point for determining parentage, it is clear that genetic connection alone is neither a necessary nor a sufficient basis for determining parentage.

This is a developing area of the law in which changing technology may be expected to drive changes in the law.

Parental Rights

Generally speaking, the biological parents of a child have the right to control the child’s upbringing. This right of control is called custody and it can be divided between the parents, or indeed between any number of people in appropriate cases.

* If the biological parents of the child cooperate in the exercise of custody, their rights take priority over all others.
* If the parents are unable to agree, as in a divorce situation, the courts become involved.

See Child Custody and Visitation.

In an increasing number of states, however, grandparents may have visitation rights that , in some situations, can be enforced against the will of the child's parent (or parents). In appropriate circumstances, the biological parents may, , surrender the rights that they have obtained from their biological parentage or they may share those rights with other individuals.

Courts have traditionally taken the attitude that a child may have only two parents. Some states have required that those parents be of different genders. Increasingly, however, states have recognized co-parenting of a child by persons of the same gender and have granted both parents full parental rights, usually by adoption. See Adoption, Non-Marital Families.

Termination of Parental Rights

A parent may voluntarily surrender their rights to a child. This is usually done with either:

* the consent of the other parent
* the approval of a court, or
* where the conduct of the parent toward the child amounts to abandonment

If a parent is found to have abused or neglected a child, a state (or state-licensed) agency may be assigned custody of the child by the court. In these cases, the agency generally has an obligation to:

* assist the parent in doing what is necessary to eliminate risks to the child, which led to the child being removed from the parent's home
* provide care for the child, usually in foster homes, until that risk is resolved

If the parent cannot eliminate the risk within a reasonable amount of time, the parent's rights may be subject to termination and the child may be placed for adoption.

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