Right of Parent to Choose Prospective Adoptive Parents for His/Her Child

Parental rights are fundamental and protected by our Constitution and the laws of our country. To terminate parental rights, there must be a significant reason, such as abuse, neglect, or harm, to permit the consideration of whether a parent is in fact “fit” to have custody of a child. It is up to the court’s discretion to determine that a parent who has either abandoned or otherwise neglected, abused, or harmed a child, should no longer have parental rights and the child should either enter into the system, should be adopted by a family member, or the spouse of the other parent. If you believe that your parental rights are in danger, it is important to speak with an experienced family law attorney.

New Law Provides Option for Parent to Choose Adoptive Parents

A new law went into effect on July 1, 2016 and relates to children who are within the state’s protection system. These children have been involved in abusive, neglectful, or abandoned homes and these allegations are in the process of being investigated by the Department of Children and Families. When a child is taken from a home under these circumstances, the state becomes the in loco parentis and acts as the custodian for the child until there is a determination about the parents’ parental rights. The new law outlines the requirements of when, where, and how a new adoptive entity may take custody of the child currently in the state’s protection.

What is Abandonment?

First and foremost, abandonment is defined as the situation where a parent, legal custodian, caregiver, or guardian is absent or otherwise does not significantly contribute to the child’s welfare and care or has otherwise failed to create or maintain a positive and contributing relationship with the child. Intermittent visitation or communication are examples of a lack of a positive relationship and could support a finding of abandonment. A parent who is incarcerated or is in and out of jail may be found to have abandoned his/her child depending on the discretion of the court.

“Best Interest of the Child” Standard for Choosing Prospective Adoptive Parents

Secondly, the new law determined that if a child is in the state’s custody, and the parental rights have not yet been terminated, parental consent to allow a child to be placed in a new adoptive home selected by the parent is considered valid, binding, and enforceable. In other words, a parent may provide consent to allow an adoptive family of the parent’s choosing to maintain the child, even where his/her parental rights have yet to be severed. The new law provides that the placement of the child’s adoptive home is subject to a higher threshold; the placement of the child in a new home must be in the “best interest of the child” rather than merely “appropriate” as stated originally.

The new law not only permits parents whose children are in the system to help select the prospective adoptive parent of the child (under the “best interest of the child” standard), but requires that the court determine if the placement is permissible.

Advantages and Disadvantages of the New Law

The purpose of this law is to give some control to a parent who may lose his/her parental rights. There are some advantages and disadvantages to allowing a parent to choose who might adopt his/her child. For example, where a parent can choose the adoptive parents, the child in question is better off outside of the foster care system and where the child has strong ties to the community it makes sense that a parent who is losing parental rights may want the child to end up with a relative or family friend. A child that may stay with his/her friends, school, and community is more likely to be less traumatized by the shift in custody. The disadvantage is that a child may be in a situation where he/she is close to the parent who allegedly abandoned, neglected, or abused the child. However, if there are allegations of abuse, neglect, or abandonment, it is within the court’s discretion to determine that a family friend or relative of the parent may not be the best choice because it could leave the child in a vulnerable situation.

Please contact West Palm Beach family law attorney William Wallshein for a confidential consultation regarding the putative father registry and its requirements in Florida.