Legal Protection of Children in Nontraditional Families

• Publication year: 2000
• Pages: 79

29 Colo.Law. 79 Colorado Lawyer 2000.

2000, November, Pg. 79. Legal Protection of Children in Nontraditional Families

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79

Vol. 29, No. 11, Pg. 79

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 79]

Specialty Law Columns
Family Law Newsletter
Legal Protection of Children in Nontraditional Families
by Sherilyn Rogers, Kimberly R. Willoughby

The American family is changing dramatically. At one time most families fit the nuclear family model, consisting of a stay-at-home mother, a working father, and 2.3 biological children. Today’s families come in many variations Consider the following statistics: 27 percent of households with children under eighteen are maintained by a single parent;1 almost 25 percent of children live or will live in step-families;2 from 6 million to 14 million children are being raised by gay or lesbian parents;3 and 3.9 million children live in households maintained by grandparents.4

Technology is poised to change even more radically what "a family" means. Children may be born with only one legal parent in certain artificial insemination situations or may have more than two legal parents in certain assisted reproductive technology circumstances. Current medical technology, for example, can create a situation where there are potentially five legal parents for one child: one genetic mother, one genetic father, one gestational mother and two parents who rear the resulting child. To address the strain that these latter scenarios are likely to put on current state laws, the Family Law Section of the American Bar Association issued a proposed model act in December 1999 dealing with legal issues presented by assisted reproductive technology.5

This article discusses ways to protect nontraditional, intact families and briefly looks at how the different legal protections work when there is a break-up of the family. The article assumes that these families consist of one parent who is a biological or adoptive parent and one who is a "psychological parent." When talking of both parties, the article calls them "parents." Examples of these families are as follows: families in which there is a step-parent; families where the parents are not married either by choice or because they are in a same-sex relationship;6 families where a biological parent lives with the child’s grandparents; and families that have used some form of alternative reproduction that results in a child who is not genetically linked to one or both parents. When talking about "intact families," the article is discussing families where the psychological parent is living with the biological or adoptive parent of the child at issue.

Statutory Protections

Children of Biological Or Adoptive Parents

Colorado and federal statutes create many protections for children with respect to their biological or adoptive parents. The following are some examples:

a child has the right to inherit from a parent’s estate, should the parent die intestate;7

subject to the priority of others, a child has the right to be a guardian or conservator or personal representative for the parent or the parent’s estate;8<

a child has the right to have a parent make medical decisions on the child’s behalf, if needed;9

a child has the right to be covered under a parent’s health insurance policy;10

a child has the right to have the family unit protected by the Family and Medical Leave Act ("FMLA");11

a child has the right to sue for wrongful death of a parent;12

a child has the right to receive Social Security benefits in the case of the disability or death of a parent;13

a child has the right to maintain a relationship with a parent unless the parent is unfit and parental rights are terminated or the parent presents an imminent danger to the child;14 and

a child has the right to receive financial support from a parent during minority.15

These are powerful tools that the state has created to strengthen and support the bond between parent and child and to ensure that a child is protected by his or her parents. For a child to be able to use these protections automatically, a biological or adoptive connection to a parent is necessary.16

Nontraditional families, however, are often left unprotected and must spend time and money hiring an attorney to provide their children the basic protections the government acknowledges as necessary to a child’s well-being. Unfortunately, because the attorney must be creative in using the law to protect these children, the attorney’s devices are always subject to changes in statutory or common law, to direct challenges from the state, or to the predilections of the judge to whom a matter is assigned. The law is anything but stable or predictable in this area. This article assumes that children are best served by being able to take advantage of the legal bonds to both of their parents.

Ways to Protect Children in Nontraditional Families

Guardianships

Under the guardianship statutes, there are three ways to become a legal guardian: (1) through appointment by the court on petition, even though one or both of the biological parents are alive;17 (2) by a delegation of powers from a biological parent while she or he is alive, which is essentially a power of attorney;18 and (3) through appointment by the court on the death of one or both biological parents.19

A person named as the legal guardian of a child has the powers and responsibilities of a parent regarding support, care, and education of his or her ward.20 The legal guardian may apply available money to the child’s needs; receive money and property on behalf of the child; maintain physical custody of the child; sue on behalf of the child; and consent to medical treatment, marriage, and adoption of the child.21 The legal guardian is empowered to make decisions for the child and to manage the child’s money. The legal guardian may cover the child under the guardian’s health insurance and may claim the child as an exemption for federal income tax purposes.22 The benefits of the FMLA apply to guardians.23 In exercising powers over the child, the guardian has a fiduciary duty to the child.24

Disadvantages of Guardianships: When guardianships are used, the child of a nontraditional relationship is not able to take advantage of many of the protections that flow from a biological or adoptive connection to a parent. Although the child can take advantage of some of the protections afforded to guardians, they are not protected by the intestacy laws25 or by the right to sue for the wrongful death of a guardian.26

There are other concerns to be considered in determining whether a legal guardianship should be used as a tool for protecting the nontraditional family and the child while the biological or adoptive parent is alive. For instance, if the client opts for a guardianship pursuant to CRS § 15-14-104 the guardianship document must be signed by the biological parent every nine months. Guardianships under this statute, essentially powers of attorney, are best where the psychological parent needs to accomplish a discrete task, such as school enrollment, or otherwise to act in the absence of the biological or adoptive parent. However, these guardianships are not useful tools for long-term protection of a child because, as noted,...