It is well settled that the right to make decisions concerning the upbringing of one's children is a fundamental right deserving the utmost constitutional protection from unreasonable state interference. It has also become increasingly well settled over the past twenty-five years that this right is not automatically and permanently guaranteed by biology. Rather, parental stature encompasses both "rights and responsibilities," and the rights are only guaranteed to a parent who has assumed parental responsibilities. Why then is a responsible custodial parent subject to state interference with his or her parental decisions in the interest of guaranteeing an absent parent, who has abandoned his or her child financially, physically, and emotionally, permanent parental rights?
Consider David. David is a divorced single father of an eight- year-old boy. Shortly after David and his wife divorced, his ex-wife left their son Joel in David's custody and moved out of state. Joel was barely one year old at the time. Despite court orders and David's efforts, Joel's mother has failed to pay child support and has made no attempts to visit or communicate with Joel for over six years. At various periods in Joel's life, David has not even possessed a means to contact Joel's mother. While battling the natural obstacles that accompany being a single parent, David is under a court order to notify Joel's mother and the court of any changes in his residence, changes in Joel's school, or substantial medical events in Joel's life. On two occasions, David has had to petition the court for permission to relocate out of state.
Now David waits, knowing that the day may come when Joel's mother decides that she wants to reassert her rights to visitation. This idea scares David as a parent, not because he selfishly wants to keep Joel away from his mother, but because he knows that neither he nor Joel would have any control over the terms of reestablished contact, nor would they be able to prevent Joel's mother from subsequently ceasing contact and disappearing once again. If this were to occur, David would be left to explain and comfort and counteract the emotional damage once again. David also lives with uncertainty because he knows that he cannot designate a permanent guardian to raise Joel in the event of his death. Regardless of any testamentary provisions in David's will, the court system would likely award custody of Joel to Joel's mother upon David's death.
So, why is it that, despite her complete disregard for court orders and her natural duties as a parent, Joel's mother retains permanent parental rights? Why is the burden left on David, the responsible parent, to continue to comply with court orders, costing him precious time and money? Why does David remain legally obligated to provide information to a woman who does not keep the father and caretaker of her child informed of her whereabouts? Why isn't David considered the best person to decide who should have contact with his son and who would best raise his son in his absence? These are all good questions, for which, unfortunately, the law provides no answers.
Wendee M. Hilderbrand,
When One Parent Goes and the Other Parent Stays: The Inconsistency and Inequity of Guaranteeing Absent Parents Permanent Parental Rights,
56 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol56/iss6/6