The First Standard
The first of the eight standards of proof which a court is required to consider prior to determining whether the consents of birth parents to a proposed adoption are being withheld contrary to the best interests of the child is stated as follows: “The birth parent’s efforts to obtain or maintain legal and physical custody of the child.”
The inquiry here concerns effort. Has the birth parent been active or passive with respect to the child? What has he or she actually done? It is not about intent. It is not about hope. It is about actions taken or not taken. Reference is made to legal AND physical custody, not one or the other. This means that the birth parent must have taken action to seek to have the chid live with him or her and to regain decision making authority with respect to all of the child’s life, not just a part of it.
The inquiry is to list and evaluate all such efforts, if any, since the birth parent lost custody. Was it a real, substantial effort? Or ws it something less than that? The birth parent who declines to consent to the proposed adoption must be able to show what actions were taken from the date of losing custody (whether formally or informally) to the date of the filing of hte Petition. Often, birth parents will file a Petition for custody or for visitation only after being served with notice of the Petition for Adoption. Such actions should not even be considered. Otherwise, a birth parent could void this consideration just by filing such a subsequent action.
“To obtain or maintain” should be understood to mean that the cirumstancews under which custody was lost in the first place is important. Did the birth parent agree to the change in custody? Or did the birth parent not contest it? Or did the birth parent make a legitimate effort at the hearing to avoid losing custody?
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