by Jeffrey W. Hamilton
It seems strange, but I’ve started writing this article numerous times. Each time I’ve tossed it because I found myself unable to express exactly what was going through my mind. Many years ago I realized that our country contains a lot of unwanted children. The circumstances which lead to the situation vary:
• A parent dies or becomes incapacitated and the other parent is overwhelmed by the responsibility. Sometimes they want to move on and seek another spouse, but the children become a liability because few people are willing to not only take on the obligations of a marriage, but also the headaches of partially grown children who might just hate you for taking their parent’s place.
• Sometimes it is the financial burden which becomes too much. A child might have medical issues which place a huge strain on the family’s budget. Or a job loss means that there are more mouths to feed than money available.
• There are times when grandparents or close relatives are saddled with the responsibility of caring for a child. They might have an older child overcome by drugs or alcohol who leaves them with their children to raise. And then problems with the children or problems of their own make it hard to continue the rescue operation.
• Teens who turn rebellious and parents, not knowing how to handle them, decide to give up instead of continuing to fight them.
These situations are not isolated to non-believers. I’ve seen it happen repeatedly among Christian families.
The saddest thing is that many of these families turn to the government to solve their problems. Yes, that same inept group that can’t even balance its own budget. Over the years people have come to believe that if you can’t take care of a child then Social Services will handle finding a new home for the child. Sometimes promises are made by social workers that the parent’s desires will be considered when placing the child. Only after the child is removed from the home do the former parents or guardians learn that they’ve lost all control over where the child is placed.
It Doesn’t Have to be This Way!
“Do you not know that the saints will judge the world? And if the world will be judged by you, are you unworthy to judge the smallest matters? Do you not know that we shall judge angels? How much more, things that pertain to this life? If then you have judgments concerning things pertaining to this life, do you appoint those who are least esteemed by the church to judge? I say this to your shame. Is it so, that there is not a wise man among you, not even one, who will be able to judge between his brethren? But brother goes to law against brother, and that before unbelievers!” (I Corinthians 6:2-6).
Why do we involve non-believers in such a critical matter as the rearing of our children? Their motivations are not the same as ours. Their interest in the health and spiritual well-being of our children is not the same as ours. Just as an example, did you realize that almost every state-arranged custodianship forbids most forms of discipline, including spanking? And yet they wonder why children in foster care tend to be wild.
Actually the laws in our country provide numerous ways to legally handle transferring responsibility of a child to someone else that does not require the involvement of the state’s social services. Understanding the various possible options might be a bit difficult, so I’ll try to break them down. Please note that the laws in each state vary, so you should consult a legal professional before attempting to transfer responsibility for your child. I am not an attorney, and I am not attempting to give legal advice, only information about possible legal options. If you are interested in these topics you should seek legal advice from a lawyer before taking any action in these matters.
Informal arrangements can be made where a child lives with some other family. Typically these informal arrangements happen between family members, such as a grandparent agreeing to take in a grandchild.
Sometimes an informal guardianship is preferable when a formal arrangement might trigger a battle between family members over legal custody of the child, or where a parent doesn’t want to give up any of their rights even though they are not able to care for the child.
The problem is that the informal caretakers of a child have no legal standing in regard to the child. If the child becomes ill, they legally cannot authorize medical treatment. They cannot legally arrange for schooling. Basically, anything requiring the signature of a parent or guardian is supposed to go back to actual parents or guardians, though in some states it is possible to slide by these legal requirements. Since an informal arrangement has no legal standing, either parent, guardian, or even someone who gains formal custody of the child through the courts can come at any time to claim the child. A significant problem is that the state could deem the parent to have abandoned or neglected the child. Social Services could remove the child and strip the parent of his or her rights.
Custody merely states who has responsibility for a child in the eyes of the court. A family court is able to grant legal custody of a child to a person or a couple. A custodian is the person with whom a child lives and who has day-to-day responsibility for the child’s welfare. A custodian cannot make major, life-altering decisions on behalf of the child. For example, a custodian cannot given consent to major medical treatment, joining the military, or for marriage.
When a child under three lives with someone for at least six months, or when a child who is thee or more lives with someone for at least a year, and that person has been the child’s primary care-giver and has been financially supporting the child, then the care-giver becomes a de facto custodian in the eyes of the court. Thus, it is very possible that an informal arrangement can take on legal standing. A de facto custodian can give his or her input to the court concerning a child and might be granted guardianship of a child if the court deems it to be in the best interest of the child.
Guardianship is generally granted by a probate court. It is similar to having legal custody, but a guardian has more rights than a legal custodian. For example, a guardian can given consent to major medical treatment, joining the military, or for marriage while a custodian cannot. A guardian has the right to direct the course of a child’s life and upbringing.
A guardian takes care of a child, seeing to his shelter, education, and medical care. But a guardian does not become a parent in the eyes of a court. The original parents are still legally required to provide financial support for their child. This is the way it is meant to work. In reality, the guardian often ends up with the financial burden anyway. If the original parents die without a will, the child still has inheritance rights. The original parents can go back to the courts and ask that the guardianship be ended. Otherwise the guardianship continues until the child reaches the age of legal majority..
If a guardian does not want to retain responsibility for a child, he may ask the courts to step down. In such cases the courts will then appoint a replacement guardian.
Guardianships are not granted unless either the original parents voluntarily consent, the original parents had abandoned their child, or a judge decides that it isn’t in the child’s best interest for the original parents to retain custody of the child. It is possible to gain custody over a parent’s objection, but you would have to prove in court that the parent is unfit. Other family members of the child’s original parents can also make objections to a person becoming the child’s guardian, though usually that would mean they wish to take on the guardianship themselves. Generally the courts give preference to close relatives over non-relatives. In all cases of guardianship, the court considers itself the superior guardian, and may change any or all aspects of the guardianship if it decides it is in the best interest of the child.
Temporary guardianship is a short-term arrangement where a child may be with another adult for a period of time. It grants that adult the right to make certain limited decisions regarding the child, such as authorizing medical treatment. A temporary guardianship does not need court authorization but does require it to be legally documented. Forms for granting temporary guardianship are easily obtained.
If the child has personal assets, a guardianship for those assets can be established separate from the custody of the child. Such a financial guardianship continues until the child reaches legal majority or the assets have been used up
In some cases, the state may deem that the parents of a child are so unfit that it would be in the best interest of the child that original parents never have custody of the child again. Once instated, the original parents cannot petition the courts to have the guardianship terminated. In essence you can view a permanent guardianship as being a degree lower than an adoption. The child retains his birth name and the original parents may still have financial obligations for the child.
A guardianship can be established in advance to take effect when a triggering event, such as death or incapacity prevents parents from taking care of their child. Until the event happens, the original parents retain all their rights.
In an adoption, the parents of a child terminate their rights and give them to the adoptive parents. Legally, the adoptive parents become the sole parents of the child. The child may take on the adoptive family’s name. He has inheritance rights in his adopted family and no longer with the original parents. The original parents give up all rights and responsibility, including the obligation to pay child support. Once the adoption is finalized, the original parents cannot revoke the adoption, though some states do make exceptions to the finality and irrevocableness of adoptions.
About half of all adoptions are by grandparents, step-parents, aunts, uncles, or other close relatives. In such cases, some of the requirements for adoption, such as having a home study, are waived. Since the people adopting the child are known to the original parents, there is more confidence that the child will be treated well and brought up in a manner that the original parents prefer. Of course, the future is unknown and if something happens to the adoptive parents, the child may be passed on to a third party. Since the original parents gave up their rights to the child, they won’t have any say in the matter if it does happen.
Adoption by a relative is, by its very nature, open, but there are times, when the child is very young, that these relatives choose to keep the information from the child. It can be difficult to forge a bond with a child if the child knows another relative is actually his biological parent.
An open adoption is a vague term with no set definition. Generally, however, it means that the adoptive parents are aware of who the birth parents of a child are and have the option of continuing contact with the original parents and their family. Even though there is communication, the adoptive parents are the legal parents of the child. The birth parents have no say in the upbringing of the child.
The reason for open adoption is to keep the feeling of loss in the child to a minimum. The important people in a child’s life have suddenly changed. Often adopted children fill in the gap with fantasies about their original family. By honest communications, a child can see the truth instead.
The downside to open adoption is there is a strong temptation to undermine the adoptive parent’s authority in raising the child. If the birth parents aren’t honest people, the child might be told all sorts of stories about why they were adopted out or how the birth parents would have treated them better if they had been able to keep them. I’ve seen one hard-working aunt’s authority completely undermined in her teenage nephew’s life because her sister-in-law, who had all rights to her son terminated, kept calling and telling the boy that if she was still his mom she would give him a car and allow him all the freedoms he desired. The fact that she was dirt poor, bouncing from one guy to the next with no real home, never was discussed. It is easy to make promises you have no intention of keeping.
A closed adoption is generally done through an agency. The adoptive parents have no idea who the original parents of the child are and are only given a minimal amount of information about the child’s background. The big advantage is that there is no disruption in establishing a new home life for the child and no one is trying to sabotage the bonding between the adoptive parents and the child. The disadvantage is that the child loses contact with his past and might blame it all on the adoptive parents. Also critical information that an adoptive parent might need concerning the child’s background might not be easily obtained.
In a private adoption an external agency is not involved. Instead, a lawyer is hired to get the proper paperwork completed and to petition the appropriate courts for the adoption. In non-private adoptions, parents first turn their rights over to an agency who then eventually turns over the rights to another couple or individual. The problem with a non-private adoption is that once rights are assigned to the agency, the parents lose all control over their child. Even if promises are made in advance that the child will be placed in a certain type of home, the agency may not honor those promises and there is almost nothing that the original parents can do about the situation.
A private adoption gives the parents more control over who will become the child’s next set of parents. More information can be passed between the original parents and the adoptive parents, such as medical information, religious upbringing, and personal characteristics. Since no agency is involved, the child does not go through a temporary home, foster care, or an orphanage. And with the right contacts, it is possible to locate parents willing to adopt a child sooner.
Costs in a private adoption are more unpredictable than the set fees agencies often charge. A private adoption can also be stressful because most states give the original parents a period of time to change their minds, generally up to 30 days. Thus, there is always the concern on the adoptive parent’s part that it might not go through.
Finding a Guardian for Your Child
Parents ought to carefully consider and name a standby guardian for their children in their will. This is especially true if you want someone who will raise your child in a manner similar to your wishes. Do they have similar religious and moral beliefs as your own? You also need to consider the person’s age. Guardians have to be of legal majority before they can take on the responsibility, but also consider that if your child is 2 and the ones you are considering to have as guardians are in their sixties, then they will be dealing with a teenager in their seventies and the child won’t be an adult until they are in their eighties. Not everyone lives so long nor has the energy needed to deal with a child when they are older. Another consideration is whether you will be able to provide enough assets to support your child. If not, will the ones you wish to name as guardians have those assets to make up the difference?
But we started out considering those children a parent might no longer want. Some think they are stuck with the child and thus take their anger and frustrations out on the child. I get teary-eyed each time I read about someone killing their own children in a moment of passion. Didn’t they realize, I wonder, that they could have turned over responsibility for their children to someone else while they got their own life back together? But few people in such situations are thinking clearly. Still, the option is almost never mentioned, so it is little wonder people don’t consider it.
My own state of Nebraska opened up the possibility of turning unwanted children over to the state. What shocked everyone was the number of people coming across the country just to relieve themselves of responsibility for their own children. The vast majority of these drop-offs were children with significant issues that made them uncontrollable, and these parents were looking for an easy way to have someone else take over the responsibility and the financial burden of these children. Still, it ought to be pointed out that the option of finding another home for their children was always available through private means. When Nebraska decided to change the provisions to only allow newborns to be dropped off, it was pointed out that the other problem children were already covered under the current laws. The real problem is that people aren’t aware of them.
Finding a guardian for your child is the real difficulty. It is asking a lot of someone to take over a job that you are having a hard time accomplishing. But it is not an impossible task. There have been several occasions where word has gone out among the brethren that children needed a home. In every case the number of volunteers was huge. So if you don’t know where to turn, start with an elder or preacher. Explain to him your problems and ask if he can help you locate suitable custodians for your children. Next, you need to find a good family law attorney to help you through the paperwork and the courts so that the custodianship, guardianship or adoption can be properly established.
Deciding Whether to be a Guardian
The thought of rescuing a child and being a hero appeals to a number of Christians, especially in light of James 1:27, “Pure and undefiled religion before God and the Father is this: to visit orphans and widows in their trouble, and to keep oneself unspotted from the world.” I encourage people to consider it, but make sure you are ready.
The reason most children are unwanted is because they have issues – issues which won’t go away simply because their parents have changed. If anything, the issues will get larger because they will have the anger of being abandoned on top of their other problems. It is going to take a lot of effort and time on your part to overcome these problems. Your home life, at least for a while, is going to be topsy-turvy. If you have other small children, you might want to hold off until later before taking on a responsibility of another child who will limit your time with your current children.
If you become a guardian for a child, remember that you are taking on responsibility for the child, including potential liabilities for that child’s actions. Though in a custodianship or guardianship the biological parents are supposed to provide financial support, it doesn’t always happen. Often it starts with good intentions, but once the child is out of sight and out of mind, the payments disappear. Don’t enter a guardianship unless you are willing to take on the financial burden. Then if the original parents do continue to supply support, it becomes a pleasant bonus. But if they don’t, then it was what you were prepared to do anyway.
You also need to consider the family dynamics of the situation as well. Are you going to be able to handle interfering relatives? Are you prepared for someone appearing out of nowhere to demand the child back? It doesn’t often happen, but the potential exists and you have to be prepared for it.
Children Need Love
Children ought to grow up in a loving environment, knowing that they are wanted and loved by those who care for them. When the burden is too much for a parent, then in the best interest of the child, someone ought to be located who can give the child the care they need.
Involve the older children in selecting a new home, if possible. Explain the reason why you need help in raising them. Once you find a potential guardian, arrange for the child to stay under temporary guardianship so that everyone can evaluate the situation. If the arrangement is satisfactory, then arrange for a longer term guardianship or an adoption.
[Disclaimer: The author is not an attorney and is not giving legal advice. Interested parties should seek legal advice from a lawyer before taking any action with regard to the topics discussed in this article.]