USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
drafting prenuptial and postnuptial agreements, separation agreements and cohabitation agreements. She is a current director of the Richmond County Bar Association (as well as the chair of its diversity committee) and is the former vice-president of the Staten Island Women’s Bar Association.
Krauss Shaknes Tallentire & Messeri LLP Empire State Building 350 Fifth Avenue Suite 7620
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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” under which a parent is individually empowered – or “joint legal custody”, which requires parents to co- operate with one another – to make important deci - sions affecting a child’s life, including (but not limited to) a child’s education, healthcare, religious upbring - ing, 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 example, a state can take protective custody of a child and commit guardianship to an authorised social ser - vices 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;
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