Adoption Q&A #12
BIOLOGICAL PARENTS HAVE FUNDAMENTAL CONSTITUTIONAL RIGHTS
Since Stanley v. Illinois, courts have recognized that parents have a fundamental constitutional right to the care and custody of their children. However, this right is not absolute. Parental rights are dependent to some extent upon the exercise of parental responsibilities.
In determining custody between a parent and a third party the parent wins absent a showing of compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody or other extraordinary circumstances affecting the welfare of the child. To maintain custody of a child versus reunification with a biological parent, a foster parent may prove unfitness, but need not do so in order to prevail. They must show that the parent has abdicated his or her responsibilities thereby allowing the court to determine which placement is in the child’s best interests. Even fit parents can lose custody if they had previously abdicated their responsibilities and the court determines that best interest considerations dictate placement with a third party. The passage of a significant period of time, and attachment to the foster parents, may weigh heavily in the court’s determination in such a case.
Attorney Elizabeth A. Neary