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Becoming a parent carries certain legal rights and responsibilities. Biological mothers and fathers who have established paternity generally have a right to custody, visitation, and to make essential decisions in the child’s life.
These rights, however, are not permanent, and can be terminated in a variety of ways both voluntarily and involuntarily. Here’s what you need to know about the termination of parental rights.
For the most part, mothers establish their parental rights by giving birth to the child. But for fathers, same-sex couples, adoptive parents, and stepparents, the process can be a little more complicated. Most states presume the spouse of the mother to be the other parent. Some states are having to update their laws to carry the presumption for same-sex spouses as well as for heterosexual couples, but others have resisted such efforts.
Unmarried and non-biological parents may have to establish their parental rights through paternity tests or court filings. Once a person has established their parental rights, only a court may terminate them.
Parenthood isn’t for everyone, and not all parental rights terminations involve sad stories. In some cases, a parent may choose to relinquish their parental rights. Generally speaking, however, parents can’t voluntarily waive their parental rights through inaction alone.
Terminating parental rights, legally speaking, requires more than simply agreeing to not seek child custody or visitation. Parents are free to live apart from or refrain from visiting with their children while retaining a legal right to do so if they so choose. However, some courts may consider a failure to demonstrate a commitment to the responsibilities of parenthood over the course of many years, during which the parent has failed to maintain contact with or financially support the child, as consent to terminate parental rights.
More often, biological parents may voluntarily consent to give up their rights. The legal termination of parental rights, however, permanently prohibits a parent from having any legal rights to the child, including custody, visitation, and the right to have any input in decisions made regarding the child’s well-being. Termination of parental rights also relieves the parent of the responsibility to financially support their children.
Voluntary consent to terminate parental rights normally occurs prior to or as part of an adoption process.
Adoption transfers all parental rights and responsibilities from the biological parents to the adoptive parents. The adoptive parents will have all the rights and obligations of biological parents, and the adopted child will have all the rights of a biological child.
Before an adoption may occur, though, the biological parents’ rights must be terminated. This is normally a formal process where parents sign documents voluntarily relinquishing their rights. Some states, however, do not require consent when the parent abandoned the parent-child relationship. “Loss of interest” alone is not enough so show abandonment in most adoption cases, and instead courts will look at the specific facts and circumstances of the case to determine if the parent failed to commit to the child or intended to abandon the child.
In almost all jurisdictions, the biological parents have no visitation rights once an adoption is final.
Some jurisdictions have so-called adoption registries used to determine the identity and location of presumed fathers and provide notice if a mother puts the child up for adoption. The presumptive father must proactively register, however, and failure to register can constitute a waiver of an objection and an irrevocable consent to adoption if the father had no relationship with the child.
Legal parents have parental rights, unless they voluntarily terminate those rights, they are deemed unfit, or it is detrimental to the child. Sadly, involuntary termination of some parents’ rights is in the child’s best interest.
The most common proceedings that involve involuntary termination of parental rights involve abuse and neglect. While the specific circumstances under which termination of parental rights can occur vary somewhat from state to state, some common situations include:
Only a court can involuntarily terminate a parent’s constitutional rights, so prior to termination, the state usually must demonstrate in court by clear and convincing evidence that a parent is unable or unfit to care for his or her child, and that it would be in the best interest of the child to terminate parental rights.
If parents refuse or choose not to cooperate with state proceedings or engage in working towards reunification with their children, the court will terminate parental rights.
In some stepparent adoption situations, where the stepparent becomes the legal parent of the child through adoption proceedings, the result can be an involuntary termination of the biological parent’s parental rights. If the biological parent’s consent is not required by law, the adoption will be granted, and the biological parent’s rights will be automatically terminated.
Whatever the circumstances leading to a termination of parental rights, all courts will also consider the “best interest of the child” standard when determining whether termination is appropriate.
Some state laws regarding this standard are very broad, stating only that courts must protect the child’s safety, health, and welfare. In other states, however, the court must consider a specific list of factors in determining whether termination is in the best interests of a child. Some common factors considered by courts under the best interest of the child standard include:
An experienced, local family law attorney will be able to advise you of your parental rights, and help you fight termination if need be.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified family lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact an attorney in your area from our directory to discuss your specific legal situation.