Relative Temporary Custody And Adoption: Compassionate Alternatives To Foster Care

“You know, you need a license to buy a dog, to drive a car – you even need a license to catch a fish.”

But they’ll let anyone be a father. With this classic line from the 1989 film Parenthood, Keanu Reeve’s character crystallized an enormous and growing problem in this country. Increasingly, young people are having children before they are ready, emotionally and financially, often without the benefit of marriage, and while lacking the most basic parenting skills. Supreme Court precedents over several decades have established that reproductive privacy is protected under the Constitution as a fundamental right, and therefore cannot be intruded upon absent a compeling government interest. Accordingly there is little likelihood that government action will reverse the trend. There will be no governmental authority issuing “parent-ing licenses” in any of our lifetimes. And yet, children wil continue to be born with tremendous social and economic disadvantages in the absence of such “Big Brother” type intervention into reproduction. Therefore the question becomes, simply, what can we do as individuals to make a difference in a child’s life.

With that in mind, it is particularly unfortunate that governmental solutions when children are being abused and/or neglected in dysfunctional households are equally unsatisfactory from many perspectives. Children can wind up in foster care placements for months and even years, and the quality of care they receive while in foster care varies greatly and is often unacceptable. For those of us who work in the area of abused and neglected children, foster care often seems to be an iatrogenic disease waiting to happen. In many cases, it need not be.

In many cases, there are concerned family members available to step in and provide care for a child whose parents are simply incapable of doing so. Oftentimes, these family members may not realize that there is an opportunity for them to legally assume temporary custody of these children, or, in extreme cases, to adopt them. The purpose of this article is to encourage readers who are aware of children who are being abused or neglected in their homes, or who could benefit for whatever reason from being removed from their homes, to consider either a temporary third-party custody action or a relative adoption.

Florida law allows a close family relative (ie, related to the third degree of consanguinity) to file a petition for temporary custody of a child. The term temporary can be misleading, because this arrangement, once established, can continue indefinitely, until the child reaches the age of majority. The process need not be adversarial. It is a common and prudent practice to seek the consent of the child(ren)’s biological parents before initiating an action. Indeed, in our office we often find that the family has reached a basic consensus that something needs to change before they contact us to discuss the matter. In these cases obtaining a relative custody order is a rather streamlined procedure.

In other cases the children have literally been abandoned at the home of the grandparents or other extended family member, and the whereabouts of the biological parents may be unknown. For those of you who have actually seen the movie Parenthood, you will recall that the parent of the young boy dropped him off with grandpa and announced that he was going off to find himself for a while, and that he would return at some time in the unspecified future. Such an occurrence creates unique pressures on the relatives who have physical possession, but not legal custody, of the children. Basic parental functions such as enrolling a child in school and providing consent for medical and dental care can be difficult if not impossible in these circumstances. Obviously, it is impossible for the family to proceed by consensus, in the absence of the biological parents). The relatives with whom the child is living face a Hobson’s choice: do nothing and hope for the best or initiate an adversarial procedure to obtain temporary relative custody. The Petitioners, who are often grandparents of the affected child(ren), will need to be prepared to allege that the child(ren)’s parents have abandoned the child(ren) and, even if they returned, are incapable of raising the child(ren) safely.

A temporary custody order does not change the parent-child relationship; even if the child remains in the home of the “temporary” custodians until he or she reaches the age of majority, the biological parents remain the childrens’ legal parents. In contrast, a relative adoption terminates the parent-child relationship between the biological parents and the child, and creates a new parent-child relationship between the child and his or her adoptive parents. A new birth certificate is issued identifying the adoptive parents as the child’s legal parents for all intents and purposes.

Relative adoptions, in contrast to adoption of a child by adults who are strangers to the child, do not require a homestudy to be conducted. As with a relative temporary custody action, adoption by a relative can be accomplished quite efficiently if the family has reached a consensus that something must change and, most importantly, the biological parents are willing to consent to the adoption. As with the relative temporary custody action, adoption can also be accomplished in an adversarial context. This requires a two-step process where the biological parents’ parental rights are first terminated as to the children; only then are the children available to be adopted. Understandably, many families will be hesitant to go this far and to make the types of allegations needed to support a petition to terminate parental rights in court. Oftentimes this situation requires the potential petitioner to literally choose between preserving their relationship with the child’s parents, on the one hand, and saving the child from unacceptable risk of harm, on the other. At this point, it is helpful to recognize that the most fundamental principle of the law as it relates to children is that the best interests of the child are paramount.

Both relative temporary custody arrangements and relative adoptions potentially offer tremendous advantages to children. They are removed from the environment in which they are being abused or neglected. Perhaps even more importantly, they are placed with members of their own, loving family and therefore avoid the potential risks inherent in being placed with even well-intended strangers. For the grownups, the knowledge that they have given a child a better chance of thriving and succeeding in life can be even more rewarding