Available from: UVM Electronic text Archive
URL: http://etext.uvm.edu
Prepared for the University of Vermont Electronic Text Archive.
Scanner: Visioneer 6100 (36 bit, 600x1200). Text OCR by Visioneer.
Quote marks retained as data. All "M" and "N" dashes converted to two hyphens or one hyphen, respectively. All unambiguous end-of-line hyphens have been removed, and the trailing part of a word has been joined to the preceding line. Some text realigned to left for purposes of readability, at discretion of editors.
I acknowledge receipt of your letter of August 23rd in which you state that a request for sterilization of a minor child has recently been made by one of the parents, who is divorced and who has been awarded the custody of said child in divorce proceedings by a court of competent jurisdiction. My opinion is desired as to whether or not the request made by the parent having the custody and control of the child, constitutes sufficient and proper request for such sterilization operation as provided by Section 5440 of the Public Laws or should the written request of both parents be obtained. I assume that the divorced parent is living and a resident of Vermont. You do not state however, whether the father or mother is the parent awarded control and custody of the child.
Section 5440 of the Public Laws requires the written request of the natural or legal guardian of the person for such sterilization operation in the event that the person is not of sufficient intelligence to understand that she or he cannot beget children after such operation is performed; Section 3201 of the Public Laws provides that the father and mother of a legitimate minor child, if competent, shall be joint guardians of such child, and if a parent dies, the surviving parent shall, if competent, become the sole guardian.
In Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652, our court said:
"Divorce and decreeing the custody of minor children to the mother do not absolve the
father from his parental duties and obligations to his children. * * * They are his blood. It is not
their fault that their parents have been divorced."
This doctrine is reasserted in Montpelier v. Elmore, 71 Vt. 193, 44 Atl. 71 and again in Wheeler v. Lowell, 91 Vt. 278.
While there is a presumption that the natural affection of a parent for a child will insure the faithful execution of the trust which he holds as natural guardian, Bioni et ux v. Hazelton, guardian, 99 Vt. 453, our statutes make both parents, if competent joint natural guardians. The divorced parent should still have an interest in his children. The order of control and custody of such child may be changed from time to time.
I am of the opinion that the request for such operation should be made in conformity with the statute by the legal guardian or by both parents, notwithstanding the fact that the court in divorce proceedings has awarded the custody and control of the child to one parent.