The wicked snatch fatherless children from their mother’s breasts, and take a poor man’s baby as a pledge before they will loan him any money or grain. -Job 24:9
Although I had intended to end my “real mother” series today, my muse had something else in mind when she sat down at the keyboard. In this post, I want to focus on what happens in the United States these days when a newborn infant is given up for adoption, and how voluntary relinquishment of a child removes the constitutional rights of birth parents to their own child. Perhaps if more people knew what signing a Consent to Adoption meant and how difficult it is to revoke one in court, fewer people would sign them or encourage birth parents to sign away the constitutional rights of themselves and their children.
The Rights of the Natural Family
In the United States, before any child can be adopted, the petitioners for adoption (usually, the adoptive parents) must prove that adoption is in the best interests of the child. The child’s own attorney, or guardian ad litem, must agree, for all adoption in the U.S. must legally serve the child’s best interests. Many people do not know that, under the law, the biological parents have substantial rights to assert, if only someone would support them in doing so. Many people also do not know that the laws in the United States support being raised by one’s biological parents as foundational to the child’s best interests–so foundational, in fact, that the right to raise one’s biological child, and the right to be raised by one’s biological parents, is a constitutionally protected right.
It is a right, that is, until a mother voluntarily gives up physical or legal custody of her baby. The act of surrender is, in point of legal fact, a terrible surrender for it abrogates the right of the child to be raised by his own parents, too. Those interested in the legal side of child welfare should compare guardianship and custody laws with adoption laws for an education in just how badly awry our adoption laws have gone, thanks to tweaking by adoptive parents, adoption attorneys, and legislators.
Because the right to raise the children one has given birth to is a constitutionally protected right, during guardianship or custody proceedings, it is presumed that the best interests of minor children is served by placement with the natural parent in the absence of clear and convincing proof showing that the natural parent is unfit. A large body of case law makes it clear that it is legally presumed that the best interests of the child is to be with his parents, unless being with the parents is contrary to the child’s welfare.
Furthermore, in the United States, any unfitness which might deprive a parent of the right to custody of his minor child must be positive and not comparative, and the mere fact that a child might be better cared for by a third person is not enough to deprive the parent of his or her right to custody of the child. So, for example, the fact that a child might be better cared for by another person is not sufficient reason for depriving a parent of custody of his or her child. At least, this is the case in guardianship proceedings.
In Alford v. Thomas, 316 P.2d 188 (Okla. 1955), the Oklahoma Supreme Court explained the natural and legal rights of biological parents thus:
“Parents have by nature, as well as law, the legal right to the custody of their minor children. This right will always control the judgment of the courts, unless circumstances of great weight and importance connected with the necessary welfare of the child exist to overcome such right.”