Termination of Parental Rights – Voluntary vs Involuntary Termination

Gone are the days of the "stay at home mother" that always gets custody of the children. Fathers have and deserve the same rights as mothers do when it comes to caring for a child. In today's modern world, both parents work to support their families, and in some instances, the stay at home parent is the father, not the mother. This is a significant change in the family dynamic and, unfortunately, the laws have not been able to keep up with the times.

Do Father's Matter in Kid's Lives?

Yes, and having an attorney that will fight for your Father's Rights and who is an experienced Father's Rights advocate is necessary to protect the special bond that exists between a father and his children. Study after study shows that there are a variety of adverse effects on children that do not have a father in their life, such as:

  • Children without fathers are more likely to use illegal drugs, tobacco or use alcohol;
  • Children without fathers are more likely to be involved in criminal activity;
  • Children without fathers are more likely to be engaged in sex and teenage pregnancy;
  • Kids without fathers are more likely to drop out of school;
  • Children without fathers are less likely to get a college education;
  • Kids with no dad are less likely to have higher paying jobs later in life;
  • Children from fatherless families are more likely to commit domestic violence;
  • The majority of teenage murderers come from fatherless families.

Without a strong father relationship in a child's life, a child has little chance to succeed and become a productive member of society. Nothing in life is worth fighting for more-this is your child's life and well-being that hangs in the balance. Knowing what the pitfalls are in a case of father's rights and custody is imperative to set the stage for success.

Common Mistakes Fathers Make

  • Moving out of the home where the children live;
  • Living in a messy house or a studio apartment without sufficient living space for the child(ren);
  • Moving frequently;
  • Not holding down a steady job;
  • Not being involved with their kids' activities;
  • Not being involved in medical, educational, or religious decisions;
  • Giving up on their children because the case becomes long and protracted.

In most instances, a father will be able to obtain equal physical custody of a child(ren) where they have been involved with the children, and there are not extreme issues, such as domestic violence, long geographic separations, or drug and alcohol abuse.

Involuntary Termination

Numerous potential clients have contacted me in the past seeking advice on how to terminate someone's parental rights.  Either due to lack of involvement or abuse by the parent.  This is not always easy for the child or the courts to properly terminate a parent's rights.  There are some statutory grounds to terminate a parent's rights.

There are nine grounds upon which an involuntary termination petition may be granted:

  1. The parent either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties by conduct continuing for at least six months immediately preceding the filing of the petition. When the statutory basis for termination has been established, the court must engage in three further lines of inquiry:
    • The parent's explanation for the conduct;
    • Post-abandonment contact between parent and child; and
    • The effect of termination on the child.
  2. The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for the child's physical or mental well-being, and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
  3. The parent is the possible but not the natural father of the child.
  4. The child is in the custody of an agency and was found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search, and the parent does not claim the child within three months after the child is found.
  5. The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to correct the conditions within a reasonable period of time and termination of parental rights would best serve the needs and welfare of the child.
  6. In the case of a newborn child, the parent knows or has reason to know of the child's birth, does not reside with the child, has not married the child's other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain contact with the child and has failed during the same four-month period to provide financial support for the child.
  7. The parent is the father of a child who was conceived as a result of a rape.
  8. Parental rights may be terminated to a child who has been removed from the parent's care by the court or pursuant to a voluntary agreement with an agency, where at least 12 months have elapsed from the date of the removal or placement, the conditions which led to the removal or installation continue to exist, and termination of parental rights would best serve the needs and welfare of the child.
  9. The parent has been convicted of a specified crime in which the victim was a child of the parent.
    • The crimes are homicide; aggravated assault; an offense in another jurisdiction equivalent to murder or aggravated assault; or an attempt, solicitation, or conspiracy to commit an enumerated crime.

The courts will look at the totality of the circumstances in assessing whether a moving party has met their burden of clear and convincing evidence to terminate a parent's rights.  No one statutory factor alone may be sufficient.

It's important that you discuss your case with an experienced attorney.  It is not always simple to terminate a parent's rights.  The courts are very reluctant to do this unless they determine that one of the statutory grounds are met and there are additional facts to support it.

Voluntary Termination

There are two distinct types of termination proceedings.  Those that are involuntary and those that are voluntary.  It is important to point out that no court will allow the termination of parental rights of either sort unless there is a party ready, willing and available to adopt the child.  The court does this because the child has the right to collect support, among other things, from the parent.  If the rights of the parent are severed by termination proceedings, they are permanently severed.

With voluntary termination proceedings, the parent who is allowing the termination of their rights must show voluntary, willing and deliberate consent to the procedure.  They must sign an affidavit that provides their consent that is then presented to and filed with the court.  After thirty days of the filing, consent becomes irrevocable, and adoption proceedings may occur.

It is important to note that most voluntary adoptions will require a home study or evaluation.  These studies are facilitated by private agencies and may take 3 to 4 months from start to finish.  They are not inexpensive, and the parent requesting the termination and adoption usually must pay for the evaluation.  Before the adoption being able to proceed, it will need to be completed and filed with the court to review.