Understanding Parental RightsA broad definition of parental rights is all of the legal rights and obligations that that go along with being a parent. This includes the responsibility to make important decisions about your child's life, as well as the duty to care for and protect the child. In cases of divorce, it also includes such aspects as custody, support, and visitation issues. In some situations, a parent may feel that it is best for their child if the parental rights of the other parent are terminated. This may be due to the absence of the other parent, non-involvement with the child, or a history of abuse by the other parent. Terminating the rights of the other parent is a drastic step to take and one that the legal system doesn't take lightly. This is because it removes all legal rights, privileges, and duties between the parent and the child. To help you further understand the concept of parental rights, read over the following answers from the legal expert:
I'm pregnant. What rights do I have? Danielle's Question: I recently found out that I am expecting a baby. The father said that if I don't have an abortion, he will sign over all his parental rights. Can he do that, that easily? Brette's Answer: No one can make you have an abortion, and if you decide to have the baby, a father cannot wash his hands of it and walk away. You are entitled to an order of paternity naming him as the father and then to child support. He cannot simply decide he doesn't want to be involved. If he fathered the child, he is required to help support it. The flip side of this is that he is then entitled to visitation, or even to ask for custody at some point. » Return to top Can I keep my boyfriend from seeing our child? Janie's Question: My ex-boyfriend has only seen our 3 yr old daughter once (on father day), and I don't want to force him to see her. I also don't want to confuse my child since she doesn't know him. Can I get it where she won't see him any more. Brette's Answer: The answer to your question depends on your situation. You should consult with an attorney about your particular situation. If your boyfriend is listed on your daughter's birth certificate, your options are limited. You can go to court and ask for sole custody, no visitation. You have to understand that children have a right to know and see their fathers, and fathers have a right to spend time with their children. Unless you have a very good reason, it's very unlikely a court will keep your child away from her father. You can also simply avoid him and hope he does not take you to court to seek visitation. If he is not listed on the birth certificate and there is no order of paternity, there are no legal ties that bind him to your daughter, unless one of you decides to have paternity proven. I would still caution you that one day your child will want to know who her father is and why she doesn't know him. It may not be easy to share your child with her father, but in most cases it is the best solution. Good luck. » Return to top Diane's Question: If the father's name is not on the birth certificate, can he just come in and take the child? Brette's Answer: In order to have the legal right to spend time with the child, the father needs to have an order that grants him custody or visitation. The only exception to this would be if the child was born while you were married to each other, then you each have an equal legal right to the child until a court decides otherwise. If however he was not named as the father on the birth certificate, he has no right to your child without first petitioning the court for a paternity test. » Return to top Would my husband have any rights if my unborn baby isn't his? Kim's Question: My husband and I are separated, and I just found out that I am pregnant with my boyfriend's baby. I have been told that if we are not divorced, my husband will have to be named as the father on the birth certificate. Also, my husband is trying to say that this is his child no matter what. Is he right? Brette's Answer: There is a legal presumption that a child born into a marriage is the child of the husband. The presumption can be rebutted by an admission of paternity by another man, or a paternity test. Can grandparents file kidnapping charges against a parent? Laura's Question: My sister has been staying with her in-laws, and her relationship with them has never been great. It got even worse when the baby was born. The grandmother is so protective that my sister wasn't allowed to hold, play, or take care of the baby. My sister finally took the baby and walked out of the house. However, she didn't tell the in-laws where she's at. Can they file kidnapping charges? Brette's Answer: No, your sister is the parent and can decide where she and her baby will live. » Return to top Topic: Custody rights of an absent parent Ally's Question: Can a father get partial custody of a child who has been with the mother all of it's life? Brette's Answer: A child always has the right to have visitation with and know his or her father, even if that father hasn't been in the picture. You shouldn't think of it as "partial custody", but instead about sharing parenting time. The goal should be to gradually introduce the child to his or her father and slowly build a relationship. This is not about handing the child over to a perfect stranger. It should start with meetings in the presence of the mother or other trusted people and gradually evolve from there. » Return to top Does step-parent adoption require both parents consent? Aimee's Question: My husband and I divorced years ago, and we've both remarried. His new wife is seeking a step parent adoption in their state of residence, but Indiana holds jurisdiction over the proceedings concerning the children. Can this adoption take place? Brette's Answer: Unless you have done something that would warrant having your parental rights taken away, your consent would be needed for this adoption to take place. If you won't consent, it can't happen. You can't just ignore the case though - you have to appear and object to it. Does he have any rights if he never adopted my child? Cindi's Question: I have a 14 yr. old daughter that my soon to be ex-husband never adopted. He has her convinced that it is better to stay with him, as he is buying her everything. Does he have any legal rights to my daughter? Brette's Answer: He has no legal rights to your daughter since he never adopted her. Get some personal legal advice as soon as possible. » Return to top What rights does a stepparent have? Cindy's Question: I have two step-children that I am very close to and have helped raise. Now that my husband and I are separated he wont let me see the kids. Do I have any rights? Brette's Answer: The issue of stepparents rights is a difficult one. Stepparents do form important close bonds with their stepchildren, much in the same way an adoptive parents bonds with a child he or she is not biologically related to. However, stepparents often have no legal rights to the child. Some states are changing the way they treat this situation and the tide is slowly changing. You should talk to an attorney who can explain your state's laws to you. Even if your state does not explicitly lay out visitation rights for stepparents, it may be possible under case law to make an argument that you have been in the role of a parent to the child and the bond is so important it needs to be continued. » Return to top Can I relinquish my parental rights concerning my stepson? Angela's Question: When we married I adopted his son. Now that we are divorcing, I wish to terminate my parental rights, because the child is just as abusive as his father. I want nothing to do with either one. Is there a way I can terminate my parental rights, and would I have to pay support? Brette's Answer: It is unlikely the court would allow you to do this. It's generally considered not in the child's best interests to be separated from a parent and be denied support from that parent. You might consider seeing if your attorney can work out a deal where you waive visitation in exchange for him waiving child support. » Return to top Topic: Is he allowed to pick the kids up from school? Karen's Question: My ex moved out of the area and has not had visitation with our daughter for over a year. Recently, he just showed up at her school and took her out of class without my knowledge. Is the school at fault if they don't call me and at least ask since he is not on the emergency card? Brette's Answer: I need more information than you've offered to be able to give you a solid answer. If you do not have a court order giving you sole custody, your ex would not be turned away by a school. You should have listed on your child's information that he is not allowed to pick her up from school. It sounds like you need to work out a visitation plan - mediation might be a good alternative for you. Make sure you specify to the school who can and cannot pick up your child from now on. Good luck. » Return to top Can he stop me from picking the kids up at his house? Lillian's Question: My husband and I have been separated for 2 years, and share custody of our 13 year old daughter and 16 year old son. For Christmas my ex's girlfriend bought our son a deck of taro cards. I asked him if he could explain to her that while I thought it was nice that she bought gifts for the kids, I did not approve of the taro cards, and could she exchange them for another gift. I have to go to his house to pick up my child support check. When I was picking up the last check, his girlfriend came out of the house and I politely but firmly explained that it was against my beliefs and how we had raised the kids. My ex called me today and said that I wasn't allowed to pick up the kids at his house anymore because I verbally attacked his girlfriend. I can not change the values that I have for raising my kids. Can he just say I can't drop them off or pick them up anymore? Brette's Answer: He can ask you not to come to his house, but he can't stop you without going back to court and getting the order changed. It might be easier if you just didn't go to the door for a while and waited in the car when you pick up the kids. This will help reduce conflict. It's pretty silly for him to leave the check in his mailbox. He can certainly mail it to you. I would suggest the following. First of all, it is not helpful for you to talk to the girlfriend, ever. All it will do is cause more trouble. Avoid her. Nothing good is going to come of it. Secondly, I understand that tarot cards are against your beliefs, but what you must understand is that first of all, your son is 16 and is old enough to make those kinds of decisions on his own. Also, he now has two homes with two parents. You don't get to decide what happens at the other home. Your husband can raise him there in accordance with his own beliefs. This is part of the experience of having two separate homes. You need to focus on what happens in your own home and step away from what happens at the other home. I know it's hard, but you do not have authority over what your husband or his girlfriend does. » Return to top Topic: Notification about taking the kids out of state. Amanda's Question: I am the custodial parent and was wanting to know if my kid's father can take them out of state legally, with or without my consent? What would prevent him from being able to take them far away? Brette's Answer: You should talk to your attorney about what exactly your custody order says. If it does not specify that he cannot take them out of state, you can go back to court and get that added to the order. In the meantime, he probably can, as long as it falls within the scope of his regular visitation. Talk to your attorney. » Return to top Can he put my son in braces without my permission? Tammy's Question: I am the custodial parent of my 15 year old son, who is currently with my ex for the summer. My son just told me that my ex-husband's wife took him to the dentist and now plans on having 4 of my son's teeth pulled and braces put on him. I don't think they plan on telling me until after it happens and it's to late to do anything about it. They live an hour away so every time my son has to go for appointment I will have to drive an hour there and back! My ex's wife is really trying to control this whole custody thing between me and my ex. Is there any way I can get him for contempt if his wife gets the braces? What can I do in this situation? Brette's Answer: What I would suggest is that you call the orthodontist and ask to consult with him. Find out why he is recommending this. Then perhaps get another opinion. Do you and your ex share joint legal custody? If so, you are supposed to make important decisions together. You need to talk to him about this. On the one hand, maybe it makes sense to let your ex pay for this. Braces can be very expensive. However it does not make sense to do this with an orthodontist who is far away if your son is not going to be in that area on a regular basis so your ex can take him. And of course this kind of decision should not be made without consulting you. What you need to do is develop better communication with your ex. You're mad right now and I understand that, however you need to learn to communicate with each other in a calm, rational way that allows you to make reasonable decisions together. » Return to top Topic: Parental Rights vs. Power of Attorney Tama's Question: I have sole custody of my two children, and my ex has visitation rights. I am currently enlisting into the military and have given temporary Power of Attorney to my friend where the kids wish to stay. My ex has stated that he will fight me for custody if I don't make them come live with him. Can he make the children go, if I have granted temp POA to someone else? Brette's Answer: Yes, a parent's right always overrides a power of attorney the other parent has given. However, a court would make a decision based on what is in the best interest of the children, not simply on what your ex thinks. Can a guardian get custody changed? Iris' Question: I am the guardian of 2 children whom I've raised since newborns. They are now 8 and 9, and the judge just granted custody to the biological mother. She has never played a role in their lives, and the children don't want to be with her. I am the grandmother and need to know if can I get a lawyer to voice the children's opinion? Brette's Answer: It sounds as though the case has already happened. To reopen it, you need either appeal or show a change in circumstances since the judge entered the order. Can we get guardianship of a soon-to-be 18 year old? Joseph's Question: My God daughter is 17 years old, and will be turning 18 in less than 2 months. Her mother passed away about two weeks ago. The father assumes that he will get total custody because he had limited visitation. My God daughter has expressed very strongly that she doesn't want to live with him. My wife and I want to obtain temporary custody. Is this even needed since she is about to turn 18? Brette's Answer: Once she is 18 she is an adult and can make her own decisions. You could certainly get a guardianship order in the meantime if you wanted to. She also has the option of emancipating herself now - moving out of her father's control. She could then choose to live with you. » Return to top Topic: Parental Rights vs. Power of Attorney Dana's Question: I have full custody of my 2 boys. If something happened to me, could my sister have guardianship over them instead of their dad? Brette's Answer: You need to consult with an attorney about a will. You can indicate your wishes for guardianship in a will, but the final decision is always up to the court. Biological parents always get first consideration. Find an attorney who has experience with this. » Return to top Can I sign over guardianship to my new husband? Sarah's Question: If I have sole legal and physical custody of my children and I get re-married, can I sign over guardianship of my children to my new husband? Brette's Answer: If you mean can you take away your ex's parental rights in this way, no. If you mean can you sign over guardianship for a limited time (such as if you are away or ill), then yes. But it has to be approved by the court. Guardianship and Parental Rights Melissa's Question: My niece and nephew are in my physical custody because their father is in prison and mother is now very unstable and doing drugs. The mother is saying she will sign over rights so children services will not come in and take them. We will do anything to keep these kids safe, and want them still to be able to see there mom and dads. Where do we go from here? What kind of custody do we need to try to get or is just legal guardianship ok? Brette's Answer: The mother can sign over legal guardianship to you. This is the simplest process. Different states do this in different courts, so you will need to find out which one is correct to use by calling and asking. When you have guardianship, you can allow contact with the parents. Another option is for you to adopt the children, but this requires the consent of both parents, and you would need to go through a home study process. » Return to top Can I terminate his parental rights if he hasn't paid child support? Denise's Question: My ex has not paid any court ordered support for almost 2 years. He has not made contact for over a month now either. Can I terminate his rights? Brette's Answer: If he hasn't paid support, take him to court for a violation. Failure to pay does not mean he should not be allowed to be a parent. Maribel's Question: I have a 5 year old boy who has not seen his father for over four years. I want nothing to do with him, and want my son to have a better life. I'm going for full custody, but my question is, can I get him to sign over his parental rights. What can I do? Brette's Answer: You will need to begin a custody
proceeding or file for a modification procedure by filing a petition in order to
open a case. When you go to court,
you can seek full legal and physical custody of your son with no
visitation rights to his father. You can also ask his father to sign
away his parental rights. Usually this is only done when there is a
stepparent adoption. Asking him to sign away his rights takes something from him
as well as your son. You would need a court to approve this and courts generally
do not like to do this unless there is a serious issue such as abuse. If he's
not in your son's life right now, he can't be causing any harm, but someday your
son may want to have a relationship with him. When he's a teenager he might be
very angry that you kept his father out of his life. This is a serious decision
and one you should consider very carefully. How to relinquish parental rights Jennifer's Question: My son's father and I live in two separate states, and he wants to relinquish his parental rights to be rid of child support. He has nothing to do with the child and I want him to give up his rights, but I don't know what to do. He told me that either I find a way to get this done or he is going to fight for custody so he doesn't have to pay child support. My question is how do we go about this? Brette's Answer: I have to tell you that I am disturbed by this scenario. This man is your child's father and will always be. Growing up without a father is a difficult thing for any child. Why would you be willing to let this man walk away from your child? You might not like him or have a good relationship with him, but you can't change the fact that you created a baby with this man who is now part of both of you. You can be assured that he has absolutely no chance of obtaining sole custody if he has no contact with the child now (and certainly not if you testify about what he said to you) and it certainly seems to be a contradiction to say on one hand that he wants nothing to do with the child and then to turn around and say that if you don't do as he wishes that he will seek sole custody. It seems to me he is manipulating you. I think that you ought to think long and hard about what this termination would mean. Think about what it would mean to your child that you allowed his father to just walk away. Think about what it means for you to not receive any more child support. Should you decide this is what you want, you need to consult with an attorney who can explain what your state's procedures are in this situation. It is by no means a sure thing. Courts allow parents to terminate rights when they have been abusive and when there is a stepparent prepared to adopt the child. Courts do not look so favorably upon parents who simply think they can turn their backs on the children they bring into the world. It is very questionable whether the court would even entertain this suggestion at all. I do understand the impulse to get the man out of your life completely, however, you must really know that is something that can never truly happen as long as you are raising his child. He will always be part of your child and your child will need to know about him, want to understand what happened, and try to cope with the huge hole in his life. Effect on extended family when signing over parental rights Crystal's Question: My sister signed away her rights to my 12 year old niece. I feel like her ex-husband and his new wife pressured her into it and made her feel like there was no other option for her. They have since not let any of us see her. Is there anything legally that we can do to be able to see her? Brette's Answer: The situation depends on what exactly happened. If your sister signed away custody, then the grandparents have a right to seek grandparent visitation. If your sister terminated her parental rights, then the child is no longer legally part of your family. Your parents should talk to an attorney. » Return to top Can he terminate his parental rights to avoid paying child support? Lisa's Question: Can he terminate his rights to our son because he doesn't want to continue paying child support? Brette's Answer: He's still obligated to support your son. Go to family court and ask how to file a child support case. » Return to top Kim's Question: My ex-husband has not seen or talked to our daughter in over a year. He is paying child support thanks to the attorney general. Is there a way to file abandonment charges or have his parental rights taken away? I do have sole custody, but he has nothing to do with her at all. Brette's Answer: Since he's not visiting her and has no involvement, what do you seek to gain? As it stands he has no role in her life. You have sole custody. A court would be very unlikely to remove all his visitation rights unless you have a very good reason. Failure to exercise visitation is not a good reason. At some point he may become active in your daughter's life again and that is almost always a good thing. Your daughter has the right to know both of her parents. If he's unable to have a real relationship with her, then that is on his shoulders, but to stand in the way of that is something your daughter would likely end up resenting you for. » Return to top Copyright © WomansDivorce.com. All rights reserved. Related Articles: This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and the experts disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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