What is the name of your state (only U.S. law)? NJ, but MA for this purpose...
So, I'm watching a rerun of The Practice. There's a child custody case on the episode, and as I watch, I find myself dissecting the correctness of the way it's going. I thought it would be interesting to discuss. Feel free to close it if this is inappropriate, but we all know that people tend to get their legal knowledge from TV...
So, Ellenor, one of the lawyers as the show, asked one of her best male friends to be a donor so that she could have a child. They signed an agreement, before the child's birth, that he would relinquish all parental rights. He now realizes, in her eighth month of pregnancy, that he wants to be a father. Ellenor believes, among other things, that the contract, on its face, should be honored.
My first argument with this is that it seems the contract is faulty because it goes against public policy - parents aren't allowed to terminate their rights unless there is someone else to take responsibility for the child. I don't know how this works out with sperm banks - does that change things?
So, they go to court (the same day, which we all know wouldn't happen). Dad gets on the stand. Explains that when he made the contract, he wasn't taking into account the reality of a child, and was just thinking about giving Ellenor a child.
He is cross-examined. Ellenor's goal is to make him seem unfit. He is a photojournalist, who currently is traveling months at a time, but he states that he will change his lifestyle to accommodate his yet to be born daughter.
This seems a reasonable accommodation to me, and doesn't make him unfit.
He is questioned on the 7 year old son he has who he has no relationship with. He states that when his previous girlfriend got pregnant, he was not ready to be a father. He is now, but he thinks he can't just interrupt the life of a 7 year old by saying, Hi, dad's here!
Well, we know that dad's wrong, but does this actually make him unfit? We always say here that he has the right to change his mind, right?
He is asked whether he has any convictions. He has one - possession of marijuana. He states that he has very occasionally used marijuana recreationally. He makes the statement that he is "growing up" and becoming more mature.
One conviction for marijuana does not unfit make. Perhaps recurring problems, but dad doesn't seem to have that problem.
He is asked if he is in a relationship. He says yes, and when he is asked how old his girlfriend is, he confesses that his girlfriend is only 20 years old. He is mocked, since he is clearly not growing up if he's dating a 20 year old.
I'm pretty sure the court doesn't care who sleeps with. Doesn't make him unfit.
So, Ellenor gets on the stand. (still, all the same day). She testifies that she never would have selected dad as the father if she had any idea that he would want to be a part of the parenting process. She says that he is irresponsible and unfit and that not only is she not in love with this guy, she doesn't trust him because he's filed this court motion going against their contract. His attorney references all these studies which show that children in day care (which this child will be placed in) or children in single mother homes don't do as well as children whose fathers are involved. Ellenor basically sticks to the premise that this is the best way because it is how she planned it.
I think this is flawed because she clearly selected him for reasons, or else she would have just gone to a sperm bank - she must have considered his intelligence, his personality, his appearance, his character - since all these things go into make a child. While many of us, before we jump in the sack, don't consider how these traits will affect children created, she clearly would, since her whole point was to make a child.
Courts always want two parents in the picture unless one is complete unfit. They don't seem to care how parents plan it...
Closing arguments - Dad's counsel restates the studies, points out dad is willing to change, states that Mom is just being selfish. Ellenor's counsel (Jimmy) says that dad has failed with son, and never has exercised maturity or responsibility. He states that he fears that the child might become attached to dad, and when he bails, studies show there could be irreparable harm. He argues that we don't let sperm donors change their minds - and that dad should not get a second chance just because he knows where his sperm went. And finally, they had a contract, it should be upheld.
Seems to me that Jimmy's argument about dad's irresponsibility is flawed - courts give parents the opportunity to raise their children. The sperm donor stuff, I don't know about. I've already said that I believe that the contract is invalid, but I don't know if that is true if he can be considered a sperm donor.
So, the judgment (still the same day)... Judge says that there are two issues - the contract, and the best interests of the child. He says that the best interests should weigh more. Unfortunately, because of the lack of a crystal ball and the judge's unwillingness to make a decision based on statistical probabilities, he has to fall back and allow the contract to tip the scales. He thus rules that the contract on its face is valid and terminates dad's parental rights, denying his motion to be placed on the child's birth certificate when it is actually born.
My husband's been in front of 5 judges thus far in his non-custodial career, and it seems to me that every judge has ruled on statistical probability - that's often how best interests of the child are determined. Studies show that children do better when they're allowed consistency and stability, so we keep them in the same school system, same custodial parent, etc., unless there are compelling reasons to change.
Clearly this outcome was created so that one of the show's main characters could win, but I would have thought they could have created a more compelling argument.
So, any thoughts?
So, I'm watching a rerun of The Practice. There's a child custody case on the episode, and as I watch, I find myself dissecting the correctness of the way it's going. I thought it would be interesting to discuss. Feel free to close it if this is inappropriate, but we all know that people tend to get their legal knowledge from TV...
So, Ellenor, one of the lawyers as the show, asked one of her best male friends to be a donor so that she could have a child. They signed an agreement, before the child's birth, that he would relinquish all parental rights. He now realizes, in her eighth month of pregnancy, that he wants to be a father. Ellenor believes, among other things, that the contract, on its face, should be honored.
My first argument with this is that it seems the contract is faulty because it goes against public policy - parents aren't allowed to terminate their rights unless there is someone else to take responsibility for the child. I don't know how this works out with sperm banks - does that change things?
So, they go to court (the same day, which we all know wouldn't happen). Dad gets on the stand. Explains that when he made the contract, he wasn't taking into account the reality of a child, and was just thinking about giving Ellenor a child.
He is cross-examined. Ellenor's goal is to make him seem unfit. He is a photojournalist, who currently is traveling months at a time, but he states that he will change his lifestyle to accommodate his yet to be born daughter.
This seems a reasonable accommodation to me, and doesn't make him unfit.
He is questioned on the 7 year old son he has who he has no relationship with. He states that when his previous girlfriend got pregnant, he was not ready to be a father. He is now, but he thinks he can't just interrupt the life of a 7 year old by saying, Hi, dad's here!
Well, we know that dad's wrong, but does this actually make him unfit? We always say here that he has the right to change his mind, right?
He is asked whether he has any convictions. He has one - possession of marijuana. He states that he has very occasionally used marijuana recreationally. He makes the statement that he is "growing up" and becoming more mature.
One conviction for marijuana does not unfit make. Perhaps recurring problems, but dad doesn't seem to have that problem.
He is asked if he is in a relationship. He says yes, and when he is asked how old his girlfriend is, he confesses that his girlfriend is only 20 years old. He is mocked, since he is clearly not growing up if he's dating a 20 year old.
I'm pretty sure the court doesn't care who sleeps with. Doesn't make him unfit.
So, Ellenor gets on the stand. (still, all the same day). She testifies that she never would have selected dad as the father if she had any idea that he would want to be a part of the parenting process. She says that he is irresponsible and unfit and that not only is she not in love with this guy, she doesn't trust him because he's filed this court motion going against their contract. His attorney references all these studies which show that children in day care (which this child will be placed in) or children in single mother homes don't do as well as children whose fathers are involved. Ellenor basically sticks to the premise that this is the best way because it is how she planned it.
I think this is flawed because she clearly selected him for reasons, or else she would have just gone to a sperm bank - she must have considered his intelligence, his personality, his appearance, his character - since all these things go into make a child. While many of us, before we jump in the sack, don't consider how these traits will affect children created, she clearly would, since her whole point was to make a child.
Courts always want two parents in the picture unless one is complete unfit. They don't seem to care how parents plan it...
Closing arguments - Dad's counsel restates the studies, points out dad is willing to change, states that Mom is just being selfish. Ellenor's counsel (Jimmy) says that dad has failed with son, and never has exercised maturity or responsibility. He states that he fears that the child might become attached to dad, and when he bails, studies show there could be irreparable harm. He argues that we don't let sperm donors change their minds - and that dad should not get a second chance just because he knows where his sperm went. And finally, they had a contract, it should be upheld.
Seems to me that Jimmy's argument about dad's irresponsibility is flawed - courts give parents the opportunity to raise their children. The sperm donor stuff, I don't know about. I've already said that I believe that the contract is invalid, but I don't know if that is true if he can be considered a sperm donor.
So, the judgment (still the same day)... Judge says that there are two issues - the contract, and the best interests of the child. He says that the best interests should weigh more. Unfortunately, because of the lack of a crystal ball and the judge's unwillingness to make a decision based on statistical probabilities, he has to fall back and allow the contract to tip the scales. He thus rules that the contract on its face is valid and terminates dad's parental rights, denying his motion to be placed on the child's birth certificate when it is actually born.
My husband's been in front of 5 judges thus far in his non-custodial career, and it seems to me that every judge has ruled on statistical probability - that's often how best interests of the child are determined. Studies show that children do better when they're allowed consistency and stability, so we keep them in the same school system, same custodial parent, etc., unless there are compelling reasons to change.
Clearly this outcome was created so that one of the show's main characters could win, but I would have thought they could have created a more compelling argument.
So, any thoughts?
