by Christina M. Pingert, Esq.
THE CHILDREN’S CORNER Advocating for Fathers
How many times have you heard that a child is having problems because he or she lives in a single parent home (usually with mom). According to the U.S. Census Bureau, twenty-four million children in America—one out of three—live in biological father-absent homes. The Supreme Court has recognized a birth parent’s right to direct the upbringing of his or her child as a fundamental liberty in- terest protected by the Fourteenth Amend- ment of the United States Constitution.1 Fathers are often ignored in cases involv- ing Children in Need of Care or Supervi- sion (CHINS). However, there are many stud- ies that show children are more successful if both parents are involved with the child. There are many benefits for foster children when noncustodial fathers are involved in their lives. Children whose fathers were more involved had a higher likelihood of reunifi- cations, were discharged from foster care more quickly, and had substantially lower likelihood of subsequent maltreatment alle- gations.2
In addition, children whose fathers
are involved also show improved physical and mental health, improved self-esteem, re- sponsible sexuality, emotional maturity, and greater financial security.
When a father demonstrates a full commit-
ment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.3
Traditional-
ly, the basic constitutional rights of noncus- todial fathers in CHINS cases and in family court have not been given adequate consid- eration. As an advocate for noncustodial fa- thers, attorneys should challenge the practic- es that violate the basic procedural protec- tions that the Constitution provides many fa- thers. The noncustodial father’s participation in the child’s life is extremely important. The attorney should determine the father’s prior involvement in the child’s life. Did the father pay child support? Did the father have con- tact with the child, send gifts or cards? Did the father attend school meetings or take the child to doctor appointments? Is the father’s name on the birth certificate? If the father has not been involved in the child’s life, the attorney should look to see if the father’s op- portunity to establish a parental relationship was blocked in any way.
For most men, being a loving, competent father is one of their most important roles. Many barriers prevent noncustodial fathers whose children have been placed in the cus- tody of the Department for Children and
www.vtbar.org
Families from fulfilling this role. Attorneys who understand the complicated hardships of these men, engage them in a male-friend- ly way, and advocate on their behalf are like- ly to help them be responsible, caring par- ticipants in their children’s lives. When that is not possible, these strategies can also help to identify the father’s extended family mem- bers, who could play a meaningful role for the child in the father’s absence.4 An attorney for a noncustodial father can help the client and his children in a number of ways. As an attorney for a noncustodial fa- ther, there are some very basic steps to as- sure that your client has meaningful partic- ipation in his child’s life: (1) make the case early; (2) make sure visitation is set up in a way that ensures father’s participation; (3) encourage the court and DCF to consider the father as a viable placement option; (4) ensure the father receives supportive servic- es to transition his child into his home; and (5) establish a relationship with the father and maintain regular contact.
Sometimes a father may not be in a po- sition to parent his child and may prefer to see his child raised by a relative or support- ive foster parent. Regardless of the role the father wishes to play in his child’s life, the role of the attorney is to help his client explore and choose from his legal options, work to- gether to identify the steps he needs to achieve his goals and to bring his progress to the attention of the Department for Chil- dren and Families, various service providers, and to the court. Representing a noncustodial father is
more complex than representing a custo- dial parent. Not only must the attorney ad- vocate zealously for the client’s wishes, but the attorney must also advocate for the cli- ent to participate in the process, convincing the agency and the court that the father is a potential custodial resource and helping to create and preserve the parent-child re- lationship. Without the attorney’s zealous ef- forts, fathers may assume defeat and disap- pear from their children’s lives. With aggres- sive advocacy, these fathers can play an im- portant role in their children’s lives. This ben- efits the father, his children, and society. Representing a noncustodial father is par- ticularly challenging if the Department for Children and Families alleges he is unfit. It is important to challenge the allegations of unfitness in court. In order to challenge un- fitness, the attorney must investigate the sources of the allegations and make all the necessary objections in court. In some cir-
THE VERMONT BAR JOURNAL • FALL 2011
cumstances an expert may help to convince the court that the agency’s allegations are unfounded or exaggerated and the father is capable of parenting his child. The father may need services to address his substance abuse, mental health, domestic violence, or other problems. It is important that the at- torney become familiar with relevant servic- es in the area in order to be able to advocate for an appropriate case plan with the Depart- ment for Children and Families. The National Quality Improvement Center on Non-Resident Fathers and the Child Wel- fare System (QIC NRF) is a collaborative ef- fort among the American Humane Associa- tion, the American Bar Association Center on Children and the Law, and National Father- hood Initiative, and is funded by the U.S. De- partment of Health and Human Services, Ad- ministration for Children and Families, Chil- dren’s Bureau. The National Quality Improve- ment Center on Non-Resident Fathers and the Child Welfare System (QIC NRF) provides many materials for attorneys and fathers on their web site:
www.fatherhoodqic.org. Noncustodial fathers may be or may be- come excellent custodial parents. The fa- ther’s opportunity to prove this to the court depends on the attorney’s zealous and in- formed advocacy. Attorneys need to guide the fathers through the decision-making pro- cess so that they can make informed deci- sions. Most importantly, attorneys must reg- ularly communicate with fathers, apprising them of the choices and the effects and obli- gations surrounding each choice. ___________________ Christina M. Pingert, Esq., is a public de-
fender contractor who has represented chil- dren and parents in CHINS proceedings for the last eight years. In July, she attended the ABA Second National Parents’ Attorneys Conference: Improving Representation in the Child Welfare System.
____________________ 1
2 Troxel v. Granville, 450 U.S. 57, 65 (2000).
K.I. Malm, E. Zielewski, & H. Chen, More about the Dads: Exploring Associations between Non- resident Father Involvement and Child Welfare Case Outcomes (U. S. Dept. Health & Hum. Serv.,
Office of Sec’y for Planning & Evals., 2008). 3
4 Lehr v. Robertston, 463 U.S. 248, 261 (1983).
ABA Center for Children and the Law. Advocat- ing for Nonresident Fathers in Child Welfare Court Cases (2009).
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