The legal issues regarding parenting can be, and often are, highly complicated and controversial issues, needing to be addressed within the following categories: custody, adoption, parenting by unmarried couples, and rights and responsibilities of parents.
Understanding how these variables interact is important, because many individuals experiencing problems in their relationships will seek help through counseling. If mental health professionals continue using the same therapeutic tools common in the past, then it is possible that the counselor may harm the client; for example, what an unmarried, heterosexual couple faces is likely to be different from what an unmarried, same-sex couple might experience.
When a couple becomes divorced and children are involved, custody is an inevitable issue. There are two kinds of custody: legal custody and physical custody. Legal custody refers to the fact that all major decisions are made by the individual(s) with legal authority to decide, based on the best interests of the child. Within legal custody, there are two types: sole legal custody and joint legal custody. Sole legal custody states that only one parent possesses the legal authority to make major decisions on behalf of the children. These resolutions are focused upon education, religion, and health care. On the other hand, joint legal custody refers to the fact that both parents possess the same legal authority to make decisions on behalf of the children. These decisions may include the type of education the children receive, type(s) of religion (or lack thereof) the children will be raised within, nonemergency medical decisions, etc.
Physical custody refers to a legally binding decision as to where the children reside for the majority of the time. Again, within this custody are three categories: sole physical custody, joint physical custody, and bird’s nest custody. Sole physical custody means the children live with one parent at one physical location most of the time. Generally, the noncustodial parent follows a visitation schedule (in some states, the term is parenting time, alternative placement, or a parenting schedule) allowing for generous visitation rights; that is, the children may sleep over at the noncustodial parent’s house. Joint physical custody is also called shared custody, shared parenting, or dual residence. With joint physical custody, each parent lives with the children for a specific part of the week, month, or year—the times and the length depending upon parental agreement. Normally, the children spend approximately the same amount of time with each parent. Bird’s nest custody means the children reside at one central location, with the parents taking turns to move in and out of the children’s residence on a previously agreed schedule.
Almost all divorcing parents choose shared parenting (joint physical custody), because it is the closest facsimile to the original parent-child family structure. Meanwhile, the law considers either joint legal custody or joint physical custody as the best custody option when both parents are deemed fit to raise the children. Another primary reason for the attractiveness of joint custody is that any major decision affecting the child is made by both parents— both parents must agree to any action involving the children.
Empirical studies support shared parenting as the most suitable arrangement, because it has the most positive impact on the children. For instance, children in joint custody are less likely to have behavioral or emotional problems and appear to have higher levels of self-esteem, better family relations, and better academic performance when compared to children in sole custody arrangements. In fact, the concept of shared parenting or joint custody was first developed in 1970 for the primary purpose of helping both parents be equally involved in raising their children. Courts have preferred joint custody since it was first used in Indiana in 1973. However, some studies argue against shared parenting, stating it is the reflection of a predivorce family structure; thus, there should be caution against an uncritical acceptance of the idea that the husband and wife make identical contributions to parenting.
Another issue seldom involved in custody agreements is the payment of child support. The law treats child support and visitation as separate issues. In others words, even if a parent fails to pay child support, he or she may not lose visitation rights.
There are four major types of adoption proceedings:
- Individual adoption refers to a single person making a decision to adopt a child, once a child’s biological parents have terminated their parental rights by their free will. The adoption decision is made based on the best interests of the child. Thus, prior to approving the adoption, a home study is conducted. During this period, scores are given to the potential adopting parent based on several factors, such as parenting skills, income, physical and mental health, and so on.
- Joint adoption refers to a child being adopted by both parents who have had no previous biological or adoptive relationships with the child. The procedure is similar to individual adoption, i.e., a home study is conducted to assess whether adoption is in the best interests of the child. Most states do not approve of adoptions if both parents are of the same sex. However, exceptions do exist, such as Pennsylvania and Iowa.
- Second-parent adoption allows a same-sex partner in a relationship to adopt the legal child (biological or adoptive) of his or her partner. For gays and lesbians, second-parent adoption is the only legal method that ensures their legal rights and responsibilities with respect to their partner’s child. Moreover, second-parent adoptions protect children in lesbian and gay families by giving them the security of two legal parents.
This is not to say, however, that the child’s other biological parent “disappears”; rather, second-parent adoption is only viable if the second biological parent agrees to terminate his or her parental rights. If no consent for termination is given, then any adoption is considered illegal and subject to both civil and criminal law. Sperm donors usually terminate any and all parental rights to any children conceived once their sperm has been donated.
The following conditions are created in second-parent adoption: (a) If the biological parent dies, the second-parent’s custody right is guaranteed; (b) the child becomes the recognized heir to the second parent; and (c) the child is eligible for the second parent’s health benefits as well as other benefits, such as social security survivor benefits when the second parent dies.
- International adoption refers to individuals or couples adopting children outside their own nation. When an American or an American couple decides to adopt a child from another country, the adoptive parents have to comply with American adoption laws (federal and state) as well as the law of the child’s birth country. Adoption laws in most foreign countries do not allow gay/lesbian or unmarried couples to adopt children.
Parenting Issues for Unmarried Couples
When unmarried heterosexual couples have children, it is essential that both parents be recognized as the child’s legal parents, because it bestows upon the child certain rights, for example, rights of inheritance, social security benefits, child support, health coverage, etc. In addition, lawyers recommend that both parents make a formal, written contract stating their intention to continue coparenting, even if their relationship with one another is terminated.
For unmarried couples, only one parent can claim the child as a dependent for tax purposes. With regard to medical care, when biological parents share custody of a child, they are the only people vested with the legal authority to make medical decisions for the child. On the other hand, if one biological parent is not involved, then the partner of the other biological parent may be listed as the emergency contact person for the child; however, the involved biological parent has the first choice in making any medical decisions.
Rights and Responsibilities of Parents
By law, parents are legally responsible for their children until the children reach the age of majority, and in most countries, this occurs when the child reaches 18. Meanwhile, the law allows parents certain rights with respect to important decisions regarding different aspects of their children’s lives, such as education, religion, and so on. Most of the time, the law does not interfere in parents’ decisions unless the child’s life is threatened or in extreme situations, for example, if the parents ignore their children’s needs for medical care. In fact, parental prosecution has occurred in cases where parents, following their religious beliefs, refused to allow their seriously ill children access to appropriate medical treatment.
The law also requires parents to restrain their children’s behavior. For example, if a child damages someone else’s property, the parents are responsible. In addition, if a parent is deemed incompetent in terms of controlling his or her child’s behavior and the child’s behavior is seriously out of control, the law has the right to intervene, that is, to take custody away from the parents until the situation has improved.
- American Civil Liberties Union Lesbian and Gay Rights Project. (2002). Too high a price: The case against restricting gay parenting. New York: American Civil Liberties Union.
- Appell, A. R. (2003). Recent developments in lesbian and gay adoption law. Adoption Quarterly, 7, 73-84.
- Bauserman, R. (2000). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review. Journal of Family Psychology, 16, 91-102.
- Falk, P. J. (1989). Lesbian mothers: Psychosocial assumptions in family law. American Psychologist, 44, 941-947.
- Kruk, E. (1993). Promoting cooperative parenting after a therapeutic/interventionist model of family medication. Journal of Family Therapy, 15, 235-261.