Guardianship a "Risky Strategy"?

When I first started reading Justice Cowin's decision for the Massachusetts Appeals Court in Guardianship of Estelle, 70 Mass. App. Ct. 575 (2007), I was encouraged by the statement that the trial judge's decision "cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others".

I didn't stop to think that the "remand for further findings in accordance with the discussion below" would result in anything other than the Appeals Court sticking to that straight forward black letter law assertion.

Unfortunately, Justice Cowin goes on to encourage the trial judge to reconsider whether actions on the part of the father that the trial judge was not willing to call abuse, neglect or unfitness still might make the father unfit "to parent this child in these circumstances at this time." [Emphasis in original.]

The opinion goes on, "Though the importance and parameters of an attachment to a foster parent or guardian have varied, the validity of considering the effect of a transfer of custody on the child as an element of the fitness of the transferee has been upheld consistently." The decision thus allows the trial judge to rethink whether the father's seeking help from the aunt and uncle during his hard times and the resulting attachment the child has to the aunt and uncle might permit denying the father's request for return of the child; without even requiring expert testimony on the issue of whether a transfer might harm the child or how such harm might be mitigated after a transfer back to the father.

As Attorney Deborah Sirotkin Butler pointed out in an email to me and posts (as AmberPaw*) on several parent and child defense attorney email lists, what this decision should make "clear, is that agreeing to a guardianship is a risky strategy for an unwed parent, especially a father, as the case law seems to be moving in the direction of making it harder and harder to retrieve a child from a guardianship, and the mere length of time a guardianship endures and the 'bonds' that form, make it hard to extract a child". [Emphasis added; questionable use 'quotes' in original.]

* Speaking of AmberPaw, you should check out her posts about DSS reform on the BlueMassGroup blog.

Non-parent visitation

Today's announcement of the Massachusetts Appeals Court's decision in Alice SMITH v. Beth JONES (pseudonyms) citing the SJC's A.H. v. M.P., 447 Mass. 828 (2006), and the U.S. Supreme Court's Troxel v. Granville, 530 U.S. 57 (2000) cases prompts my observations on the subject of visitation by non-parents and the de facto parent doctrine.

The Smith and A.H. cases were ones in which the courts denied de facto parent status to former female partners of the children's adoptive and birth mothers (respectively). The cases remind us that sometimes someone who is not the legal parent of a child may have a right to continued contact with the child over a "fit parent's" objections, when that person has a consensual, co-parenting relationship with the child.

Jones was found not to want a co-parent relationship with Smith even when they were together, so Smith could not enforce one once they broke up. Though M.P. wanted to share parenting with A.H., A.H. did not submit the co-parent adoption documents that A.H. urged her to and didn't really participate as much in parenting as their co-parenting plan had envisioned. When they broke up, the courts were not going to force the mothers with their children to let the non-parent partner maintain contact.

The doctrine has also arisen in a couple of my care and protection / termination of parental rights cases in which DSS wants to terminate custodial rights of the relatives from whom it has removed custody. I have argued that though the de facto parent doctrine does not apply between the state and a relative custodian, the custodian with a relationship with the child and from whom DSS took the child must be given the rights of a parent to reasonable efforts at reunification and full standing to contest DSS actions in court.

Troxel was a grandparent visitation case in which the Washington State statute giving grandparents rights to seek visitation at any time was found to be too broad an infringement on the rights of a "fit parent" to determine whom they had to let their kids visit with.

The Massachusetts SJC interpreted its grandparent visitation statutes as not violating parents rights in Blixt v. Blixt, 437 Mass. 649 (2002). I was successful in getting a grandmother visitation with her granddaughter who was in DSS custody through a CHINS case over the mother and step-father's objections citing Blixt and my client's long-term excellent relationship with the teenaged granddaughter.

It was ironic to me in that case that DSS would keep a child in custody over her mother's objection but required us to go to court several times to overrule the mother's unreasonable objections to her mother visiting with the teen.