USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In the USA, a parent’s right to make decisions for chil - dren is protected by the Due Process Clause of the 14th Amendment to the US Constitution. Although the terminology may vary across the 50 states of the USA, a parent’s decision-making power with regard to a child is most often referred to as “legal custody”. A parent can have “sole legal custody” by which a parent is individually empowered – or “joint legal custody”, which requires parents to co-oper - ate with one another – to make important decisions affecting a child’s life, including (but not limited to) a child’s education, healthcare, religious upbringing, and extracurricular activities. 1.2 Requirements for Birth Mothers A birth mother would automatically acquire parental rights or legal custody of the child. A birth mother can lose custody of her child to the authority of the state if a court determines that such relief is in the child’s best interests and the court terminates or suspends the mother’s parental rights as a result. By way of exam - ple, a state can take protective custody of a child and commit guardianship to an authorised social services agency if parental rights are terminated owing to a finding of neglect or abuse, a newborn testing positive for drugs, etc. 1.3 Requirements for Fathers A father’s parental rights in the USA will depend on his relationship to the child’s mother at the time of the child’s birth. A father acquires parental rights over a child if the child was born of the marriage between the mother and father. In some states, including New York, a father acquires parental rights over a child if the child was born of a civil partnership between the mother and father. Alternatively, parental rights can be acquired by unmarried fathers in other ways, including – but not limited to – by: • being registered as the child’s father on the birth certificate;
• obtaining a parentage/paternity order from a court (eg, an “Order of Filiation” in New York); • entering into a custody agreement with the child’s mother; • obtaining a court order granting joint or sole legal custody; and • entering into a marriage with the mother. As regards parental rights for a father in a same-sex relationship, please see 1.4 Requirements for Non- Genetic Parents . 1.4 Requirements for Non-Genetic Parents There are various categories of non-genetic parents in the USA. Each category has different requirements for acquiring parental rights. Adoption US citizens who are at least 25 years old can legally adopt a child, subject to any additional requirements pursuant to specific state laws. Such requirements across various states throughout the USA regarding a person’s eligibility to adopt a child include, but are not limited to, passing criminal background checks. In New York, adoption is a legal proceeding whereby a person acquires the rights and responsibilities of a parent in all respects. Once the court grants an order of adoption, the parent and adopted child legally establish the relationship of parent and child. Step-Parents Step-parents who wish to acquire parental rights and responsibility for their step-children must formally adopt them. Once the step-children are adopted, the non-custodial parent no longer has parental rights or responsibilities, including child support. Step-parent adoption is the most common type of adoption in the USA. Same-Sex Relationships In 2015, the US Supreme Court struck down all state bans on same-sex marriage, and legalised same-sex marriages in all 50 states. Same-sex couples can establish parental rights in various ways, including by adoption, pregnancy and surrogacy. In general, a biological parent automatically has legal custody of the child, and a child born into a marriage is subject to both spouses’ legal custody.
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