Saturday, March 17, 2007

Terminating Parental Rights - a follow up

In an earlier post, I wrote that an agreement by the parents to voluntarily terminate parental rights was against the law (the technical term for any other lawyers reading this - void as being against public policy). I had to do some research last week while in Indianapolis and I noticed a citation to In re the Matter of Hambright. In Hambright, Indiana's Supreme Court wrote the following:

It has long been held that “the right to support lies exclusively with the child, and that a parent holds the child support payments in trust for the child’s benefit.” Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997), trans. denied. The custodial parent acts as a trustee of the payments and is to use them for the benefit of the child. Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). As the constructive trustee, the custodial parent may not contract away the benefits of the constructive trust, and neither the parents nor the child may informally effect a modification or annulment of accrued benefits. Cf. Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997).
I added the emphasis above. I see no difference between contracting away benefits and signing an agreement with the other parent to give up parental rights. Since that termination cannot be done, the parent paying support remains obligated for that support. I do not think that the payor suckered into this kind of an agreement can argue waiver against the custodial parent - the custodial parent acts as a trustee for the children and the children did not agree to
terminate the parental rights and their child support

All this did get me thinking down a line of argument that I never considered before. I wonder if the making of such an offer does give the non-custodial parent (assuming the custodial parent makes the offer and if not, then is argument lacks any application) grounds for modification of custody? By making this offer, the custodial parent is not thinking of the children's best interests or upholding the fiduciary duty of a trustee.

One might want to think on the following from Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005):
...Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children’s other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents—indeed, those duties do not evaporate even if the relationship between parent and children deteriorates.

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