Termination of Parental Rights
Each state and the District of Columbia have laws stating specific grounds for terminating parental rights.
Most often, the State or a custodial parent or guardian will file a petition to terminate parental rights. This petition is against a parent or parents who have had minimal contact with a child and have not provided financial support to the child's upbringing. The termination action seeks to permanently end the legal rights of one or both of the natural parents of a child. This ends the parent-child relationship. In certain cases, a parent will agree and voluntarily relinquish their parental rights. Either outcome will "free" the child for adoption.
State laws differ slightly on the exact grounds for an involuntary termination of parental rights. However, most states will require clear and convincing evidence of those grounds. They will also provide that a determination is in the child's best interests. Parents who abandon their children are more likely to lose their parental rights. Parents who commit child abuse likely will face termination proceedings. The following articles and resources cover the process of terminating parental rights, reinstating parental rights after termination, and related matters.
Best Interests of the Child
Courts make a variety of decisions that affect children. These include permanent placement and legal custody determinations. Court rulings also address child support and claiming children for tax purposes. The court will also address issues of safety and permanency planning. They will oversee proceedings for termination of parental rights.
Whenever a court makes such a determination, most states require it to weigh whether its decision will be in the “best interest" of the child. In some states, statutes use general language mandating that the child's health and safety are paramount. In other states, the law sets specific factors for consideration. These may include:
- The child's age
- The child's physical, mental, emotional, and moral well-being
- Cultural and attachment issues
- The child's reasonable preferences
- The parents' wishes
- A conviction of any parent or household member for child abuse or neglect; domestic violence; or a sexual abuse offense
Voluntary Termination of Parental Rights
Oftentimes, parents voluntarily terminate their rights when they wish to give the child up for adoption. In a common scenario, the child lives with the custodial parent and their spouse. The custodial parent and their spouse seek to terminate the other parent's parental rights to complete a stepparent adoption. The child's other parent then agrees and files a statement relinquishing their rights to the adoptive parent. The family court then approves the relinquishment and adoption.
In another scenario, the State files for the termination of the parental rights of one or both parents. It does so through its human services or protective services division. This may occur when one or both parents are not fit to have the child in their care. The State may find a grandparent or foster parents appropriate for adoption of the child. The parents voluntarily relinquish their rights so the adoption can proceed.
Outside of adoption, the request for voluntary termination of parental rights can be controversial. It may not succeed. Children have a right to a parental relationship. This includes a right to receive financial support and care from both parents. Two common situations that often lead to requests for voluntary termination of parental rights include:
- A parent who wishes to terminate their child support or financial obligation for the child; or
- A parent who desires to have the other parent completely out of the child's life. Courts may often find these outcomes are against public policy.
Involuntary Termination of Parental Rights
The State will normally file for involuntary termination of parental rights only after reasonable efforts at reunifying a child with the natural parent(s) have failed. Each state law will set out the grounds for involuntary termination. Common grounds include:
- Child abuse or severe neglect of a child
- Conviction for sexual assault or other felony sexual abuse
- Abandonment of a child
- Long-term alcohol abuse or substance abuse
- Felony criminal conviction
- Knowingly placing a child in danger
- Failure without just cause to provide financial support for one year or more
Courts will scrutinize any request to terminate parental rights closely. In light of the severe consequences, courts will often appoint counsel to represent persons who demonstrate indigency such that they cannot hire an attorney for their own defense.
Reinstatement of Parental Rights
When a court orders the termination of parental rights, the legal relationship between a parent and child ceases to exist. And although a parent may petition the court agreeing to waive parental rights, the main consideration for the court is always the child's best interest.
Laws allowing reinstatement were drafted generally in response to older children who were aging out of foster care without a permanent placement. In such situations, the law provided a path for reinstatement if the natural parent had made progress and could now provide a safe home. More often, reinstatement is available only on the condition that the child has not been permanently placed in a foster home within a given period of time. Some states limit reinstatement rights to only certain types of cases, for example, in cases of newborn infant adoption.
How a Family Law Attorney Can Help You
Consider meeting with a family law attorney in your area if you have additional questions about termination or reinstatement of parental rights.
Remember, a person whose parental rights have been terminated also loses custody or visitation rights with the child. If the voluntary termination occurred through a state child welfare agency, some states provide limited post-termination access to the child by the former parent. The family code of each state governs the rules and procedures for termination and post-termination access, if any.
To understand how the laws of your state apply to your situation, you should seek legal advice from a qualified family law attorney in your area.
Can I Solve This on My Own or Do I Need an Attorney?
- Parental liability laws are different in every state
- Liability cases are complex and a skilled attorney is essential
- Establishing or terminating parental rights will involve a court process
An attorney can help protect your rights after your child’s negligent or criminal acts. Many attorneys offer free consultations.
Don't Forget About Estate Planning
If you are in the midst of a parental rights or liability case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.