A 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 FAQs:
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 (find out more about paternity and child support). The flip side of this is that he is then entitled to visitation, or even to ask for custody at some point.
Rebecca's Question: I am seven months pregnant and have no contact with the father of the child. He is aware of the babies due date and that he is the father. Can he file for visitation or custody without knowing the birth date, sex or name of the baby?
Brette's Answer: Yes. He can offer an approximate date of birth and simply state name and sex are unknown.
Janie's Question: My ex-boyfriend has only seen our 3 year 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 anymore?
Brette's Answer: The answer to your question depends on your situation. You should consult with a family law attorney about your particular situation. If your boyfriend is listed on your daughter's birth certificate, your options are limited. You can 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.
Shannon's Question: My son's dad is not listed on the birth certificate. Can he get visitation rights or any parental rights by seeing and taking care of him every other week?
Brette's Answer: If you establish a pattern of visitation then you are setting up a status quo the courts will want to continue should you end up in court. However, the simple fact that this is your child's father alone gives him rights.
L's Question: My daughter has a 12 week old baby but she didn't marry the father, although she did list him as father on the birth certificate. They have no child support orders or any other legal matters started. He is very controlling and uses the baby visitations to see my daughter, in hopes of reconciliation. He's threatening to take the baby because things aren't going his way, and he is just manipulative enough to try it. I'm just concerned as to what actions to take if he takes her.
Brette's Answer: It is always a good idea to have a custody order in place to protect against these types of situations. She can file for temporary custody and a visitation plan. That should get things organized and calm down the situation.
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 biological 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 child's birth certificate, he has no right to your child without first petitioning the court for a paternity test.
Bethanie's Question: I have a friend who got a girl pregnant while they were dating. He asked her to marry him because it was the right thing to do, but now she is coming out after they have been married for a year and saying that his son may not be his. If he's not the father of his son, can he still have parental rights since his name is on the birth certificate?
Brette's Answer: If a paternity test reveals he is not the father, he has no rights to the child. However, most people hopefully realize that if a child bonds with a person that that relationship should continue even if it is not formally recognized.
Shelli's Question: I was 4 months pregnant when I met my husband, and after giving birth to my child he signed her birth certificate. We got married 3 years later. Can he gained custody of my daughter even though he is not the biological father?
Brette's Answer: Since he has admitted paternity by signing the birth certificate you would need a paternity test to prove he is not the parent. Until then, yes he can get custody.
C's Question: I was still married when I gave birth to my child, but my husband was not the father. According to the state of New York, he became the legal father of the child. We want the biological father to become the legal father and the three of us are all in agreement and none of us has any objections to this. What do we need to do so the biological father becomes the legal father and not my ex-husband?
Brette's Answer: You will need to institute a paternity proceeding. I recommend that you get an attorney who can submit a stipulation from everyone involved along with the paperwork so that everything can be handled smoothly and quickly.
Bryanna's Question: My twins' biological father left me when I was 4 months pregnant because it was too much for him to handle. I met someone else and we got married fairly quickly. He agreed to put his name on their birth certificates. Is there any way we can go after the biological father for child support without having to take my husbands' name off the birth certificate?
Brette's Answer: No. Your husband is the legal father, unless you wish to change that.
Misty's Question: If only my name is on the Birth certificate and my child is now 6, could I have my new husband put on her birth certificate as her father?
Brette's Answer: He would have to adopt her. This would mean notifying the biological father and getting consent if he can be found or admitting you don't have any idea who the father could be.
Sandra's Question: I have a 10 month old baby. The father's name is not on the birth certificate, but he admits that the baby is his. Do I need like an affidavit of parental rights to have full custody of our child?
Brette's Answer: At this point no. He's not named as the father on the birth certificate and is not considered a legal parent. If he wants to become one, he would need to institute a paternity/custody case. The up side of that is that you could get child support. You could also begin a case yourself if you wanted to make things legal. You need to weigh the pros and cons of the situation.
Alicia's Question: I don't know who my daughter's father is, but I told one man that it might be him. Now he is saying he wants to have her half of the time. He is on probation for drug related charges and has been in jail three other times. I don't want him to have visitation with her even if a paternity test proves he's the father. He is a felon who has no means of supporting her, does drugs, has no place for her to live, and they do not know each other. My boyfriend thinks I should just sit and wait until he does something in the courts. This is really scaring me thinking that he could be the father and he would get joint custody of her! What should I do?
Brette's Answer: There are two ways of approaching this. One, as your boyfriend said, is to do nothing and wait for him to do something. He might decide he is not motivated enough to do it. Until he is proven to be the father, he has no rights.
The other is to file for paternity and custody now. A DNA test will be done and you will know if he is the father. If he isn't, then you don't have to worry. If he is, then he is entitled to ask for visitation. It's really unlikely he would be given joint legal custody based on what you have said, although visitation is possible. It doesn't sound like he is stable or dependable, so you could ask for supervised visitation. Good luck.
Kim's Question: I'm separated from my husband 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.
Amanda's Question: What rights does an unmarried father have if he has not shown any interest in the child's life in 8 months? He is only now pushing for a paternity test because his new girlfriend has problems with my family. Does this give him any rights to my son? I have never asked for child support, offered supervised visitations which were declined, and tried having contact with his family.
Brette's Answer: He has the right to ask for custody or visitation. The court determines what will work based on what's in the best interest of your child. It's very unlikely he would get custody of an 8 month old baby he's never met. Likely, the court would order visitation that will slowly be increased once they get used to each other. I know it is difficult, but it is probably best for your child to know his father.
Raquel's Question: Can my ex get to see our child if he has denied her being his? When I was pregnant, he denied our child from the start. He even wanted to get me to lose the baby... Now that she's a year old now he wants to get involved.
Brette's Answer: Yes. He's her father and she has a right to have a relationship with him. I would encourage you to work out a parenting plan together.
Jean's Question: I was raped by a former friend. He is asking for a DNA test on my child and there is a possibility it could be his. The former friend has history of violence and was just given a year peace bond and I'm scared to even see him in court. What can I do? I don't want him to see my child or have rights to her at all.
Brette's Answer: You need an attorney. Get one immediately and do nothing until you have one.
Leonie's Question: Can I refuse to take DNA tests because my ex wants to make sure he is the father of my child? I don't want him to be part of my life because of his habits.
Brette's Answer: If the court orders a DNA test you would be in contempt if you refused. If there is no court order, you are not required to take the test.
Yasmine's Question: My ex and I do not get along because he left when I was pregnant (his excuse was that I bailed out on getting an abortion). He hurt me to my soul, thus resulting in us not getting along at all. He wants to be in my son's life but I don't think he deserves it. If he tries to sue me for custody is it possible? How can I avoid letting that happen?
Brette's Answer: The way you need to think about this is what would be best for your son. It is most likely best that your son has a father in his life. If you keep his father out of his life he could come to resent you later when he finds out what happened. You may be hurt about how your ex acted, but does not mean your son has to bear the brunt of the problem.
Susan's Question: After a DNA test, the father on the birth certificate is not the biological father. We are divorced and residing in 2 different states. We need to modify the divorce decree so that he is not responsible for them. How do I go about this?
Brette's Answer: You're going to need to consult with an attorney to find out what is the proper procedure in your state. First you're going to need to have the paternity results admitted into court, or do new testing if required by the court. Once paternity is ruled out, then the divorce decree can be modified to reflect the findings.
Nichol's Question: My Ex and I signed the declaration on paternity when my son was born, but I have serious doubts if my child is his biological child. I would like to know if I can request a paternity test despite the form being signed, and if it comes back as he is not the father... does he still have rights?
Brette: You should be able to open a paternity case. If he is not the father, he has no rights. » Return to top
Katie's Question: I have a 1 year old daughter who stays only with me. I filed for child support and got the order stating that we have a hearing. Do I have to bring my daughter to the hearing? And does he have any right to change her last name just because he is the father (he is not on the birth certificate but has a DNA test)?
Brette's Answer: The answer is no to both questions. Children should never be brought to court unless you are specifically directed to do so. He does not have the right to change her last name without your consent.
Nikki's Question: Can I take a hair follicle test result and submit it to court? The judge never specified where to go. I can't afford $120.00 lab test so I found one cheaper online.
Brette's Answer: The problem with that DNA test is that it is likely not admissible into evidence, because it hasn't been authenticated. Court-ordered tests come with an affidavit of authenticity. Why are you paying for the paternity test? This expense is usually the father's. Suggest that he be ordered to pay for the test. Good luck.
Lillian's Question: We've been separated for two 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 tarot 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 tarot 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 cannot 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.
Amanda: I'm the custodial parent and wanted 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.
Question: Is it legal to leave the state without the kids and have someone else watch them, without telling the other legal parent?
Brette's Answer: It depends on the situation. If you go for a month and leave them with the guy who runs the corner store, then you're setting yourself up for trouble. If you go away for a weekend and leave them with your mom and this is during your scheduled parenting time, it shouldn't be an issue. Doing so on a regular basis sets you up for the other parent to seek and win a modification.
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 the children's best interest, not simply on what your ex thinks.
Ashley's Question: Both parents have equal custody of a child, with one parent having the child during the week and the other during the weekend. If the parent that has the child during the week is hospitalized, who has the primary authority over the child and where she will stay? The parent in the hospital wants her to stay with his parents but the other parent wants the child with her. Who gets her?
Brette's Answer: The court would usually prefer that a child is with 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.
Ally's Question: Can a father get partial custody of a child who has been with the mother all of its life?
Brette's Answer: Unless his parental rights were terminated, he can always go back and ask the court to give him visitation. 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.
Lynette's Question: My ex-spouse reduced the child support on his own exactly a year ago. Also, he cancels on last minute visitation with kids. I asked my ex to take the kids to the Doctor appointment and he refused, stating that his only obligation is child support and health insurance. He refuses to go to any of the kid's activities unless I don't go (that is his condition). I've tried to talk to him, but he hung up on me. What can I do to enforce his responsibilities as a father?
Brette's Answer: First of all, he can't reduce the child support on his own. Only the court can reduce it. If he's not paying the full amount take him to court for violating the order. There is nothing you can do to force him to spend time with the children or take them to medical appointments or attend their events. It's his loss. I think you need to find a way to stop stressing over this since clearly you're in a delicate position right now. Stop engaging with him about this. He has set visitation times and if he comes, he gets it. If he doesn't come, end of story.
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.
Kris' Question: I am divorced and I have joint legal and full physical custody. In the event of my death, their father would have custody of my children. He has told me that if I do expire, he will immediately have his new wife adopt my children. Is there any way to stop this process, God forbid something happens to me. I would like my family to still exist in their life. What can I do to prevent this from happening?
Brette's Answer: I think that you shouldn't worry about this. If one parent dies, the other normally does get custody unless there is a very good reason not to. If your ex wants his spouse to adopt, that adoption has to be approved by the court and would only happen once it was clear she had an established relationship with them. But the odds are you aren't going anywhere, so try not to worry about it.
Paula' Question: My husband has 2 children with his ex-wife. She is now remarried and he wants to let her new husband adopt their 2 children. Everyone is ready to take this step; we just do not know where to start. Any ideas where we need to go and what we need to do?
Brette's Answer: If your husband is willing to consent to the adoption (and lose all legal rights to his children), his ex and her husband need to file an adoption petition in the court in your county that handles adoption cases. Sometimes this is family court, sometimes it is another court. I would suggest everyone talk to an attorney so they completely understand what they are agreeing to. Good luck.
Brittany: I have sole custody and my husband, her step father wants to adopt her. I'm not sure where her biological father is and he has not seen her since she was two months old. Will we need to find him again to complete the adoption?
Brette Answers: You'll need to attempt to give him notice. If you can't find him, the court will order that notice be given by publication, which means you'll have to put a classified ad in a newspaper. If he doesn't respond, you can go ahead. Stepparent adoptions are generally an easy process, although your husband will have to undergo a criminal record check.
Thomas' Question: My fiancé has passed away and wanted me to take care of her children. The only paper I have of this request is a living will, which according to an attorney I contacted, will not stand up in court. I need the father to give up his parental rights so I may continue getting the children the services they need. The youngest is autistic and is in jeopardy of losing her services if I cannot provide "legal" custody. If the father refuses, what are my options?
Brette's Answer: Unfortunately, very few. There is some caselaw to support stepparents getting custody in rare situations, but since you were not married, you're at a disadvantage. I would suggest finding an attorney who has experience in this and finding out if there is any precedent for it in your state.
Kim's Question: My daughter will be turning 12 in April. She is miserable when she goes to her father's and he has not seen her since Christmas. I am getting married in April to a wonderful man who is like a real Daddy to her. She has decided she wants him to adopt her. But until she is old enough, her father says she still has to come see him. What is the age of which she can decide whether she wants to go to her Father's or not?
Brette's Answer: Your new husband will not be able to adopt her unless your ex agrees, which seems unlikely. It's wonderful that she has a good relationship with her boyfriend. It is important that you encourage and support a relationship with her father. Many tweens and teens go through periods where they decide they don't like a parent. That doesn't mean they get to decide they will no longer have a relationship with that parent. I would suggest you take your daughter to a counselor and ask her father to go too so that you can help her work through the problems and find a way to have a reasonable relationship with her father.
Jennifer's Question: My daughter is twelve years old and her biological fathers' rights were temporarily terminated in lieu of child support ten years ago. My husband is the only father she knows. Can he adopt her?
Brette's Answer: I'm not sure what you mean about "temporarily terminated". It sounds like he gave up his right to custody and visitation. That is not the same thing as terminating parental rights, which severs all legal ties. For your spouse to adopt her, her biological father would have to consent.
Janica's Question: My step-daughter's biological mother has legally terminated her parental rights and signed POA to me. The termination paperwork states she terminated her rights so that I can adopt her. Can she try to get custody or be able to have legal visitation in the future? Is there any reason why we should go through the financial and time consuming hassle of adopting her if the mother has terminated rights?
Brette's Answer: If you don't adopt, you are not the legal parent. The state has a duty to find a permanent home for the child so if you won't adopt, she could be placed elsewhere. If she terminated her rights, she is out of the picture, but the issue is that your rights are not secure.
Margie's Question: My daughter is 3, and ever since she was born my ex has been in and out of her life. My daughter has no idea who he is and hasn't seen him since she was at least 9 months old. He only sends money every blue moon. I'm currently engaged, I want my fiancé to adopt my daughter. She looks at him as if he is her father. Is there any way I can have my ex's parental rights taken away? Would this end my ex's child support obligation?
Brette's Answer: If you want your boyfriend to adopt your child, you need the bio dad's consent, unless he has already given that. Without consent, the adoption cannot go forward simply because the situation is inconvenient or uncomfortable. That's your only option. If the adoption does go through, child support would then end
Sharon Asks: I've been divorced for 2 and a half years. My ex-husband and I have joint custody, but I am the domiciliary parent. I am getting remarried and my fiancé wants to adopt my daughter. My ex-husband is not very involved in her life and does not fulfill his commitments in terms of child support or in seeing her as frequently as stated in the divorce agreements. He does not want to give up his parental rights and I would prefer for him not to have to, but I know that my new fiancé will be more of a father figure to her than my ex. First of all, is there any way for my fiancé to adopt my daughter without my ex losing his rights? Secondly, if that is not possible, what steps could I take to allow my fiancé to adopt my daughter?
Brette's Answer: Your fiancé cannot adopt your daughter unless the father's rights are terminated. Being lax with visitation and child support is not grounds for termination. Your fiancé can have a very important role in your child's life. It's not always about what the legal papers say. If he becomes her emotional father, they will have that bond forever. At the same time, it's important for her to have a relationship with her biological father too. A child can never have too many loving adults in her life.
Tara's Question: My son's biological father is in prison for raping a 12 year old. If I have sole legal and sole physical custody, do I need his permission in order for my current husband to adopt him?
Brette's Answer: His rights have to be terminated, either by the state, or by his own volition, before your son can be adopted.
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.
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 won't 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 parent 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 a lawyer 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.
Question: Can a step mother attend a doctor's appointment with the father? Both parents have 50/50 visitation.
Brette's Answer: Yes, unless there is a court order directing against it or the other parent objects.
Kara's Question: I would love some good, kind, solid advice on the problems we have been having concerning his ex-wife and his now 10-yr. old son (they've been divorced for over 7 yrs. now). My stepson resents coming to our home and has increasingly become more resistant to being any part of our lives. He finally has said that he just doesn't want to be with us and rather just his mom.
His mom is completely bitter to this day, and is a very nasty, self-centered person. She does not like either one of us, and my stepson is so much like her it's becoming unbearable in our home and around our families. He doesn't want to come over (she is in no doubt supporting that), and my stepson is constantly is hurting the feelings of my husband, myself and our families who have cared and loved him so much. My stepson says his behavior is fine and that he doesn't want to spend time with us if he will get disciplined (grounded, no sports, etc. for being disrespectful to others, etc.). He's being very spoiled and blind to how he should treat people in real life? Why is he so protective of her and SO DISRESPECTFUL of us, especially to his own father that has been in his life from day one? Any advice would be great....we are just wondering if we should give up?
Brette's Answer: I'm sorry to hear this happening to you. The best advice I can give you is to try to get him to go to a counselor with you. You really need professional help because your situation is so severe. If you can't afford it, or can't get the mother to agree, you might try sitting down with her woman to woman. I know some stepmoms who have had great success in creating a relationship with the mom in this way - get the husband out of the picture and try to relate woman to woman and make it clear you love her son yet have no desire to replace her in his life. Another idea is to use a rewards-based system with your stepson. Instead of punishing him every time he is rude, why not try rewarding him when he does something you ask of him? You might also consider seeing a counselor - just you and your husband - to get some professional advice about how to handle the situation. Good luck with this! » Return to questions
Tina's Question: We've been separated for a while and recently my step daughter told me her dad was abusive, and I'm going to call the child abuse hotline. Will I be able to get custody of her or will she be put in a foster home?
Brette's Answer: If she is removed from the home, placement with a relative is preferred. You have to meet social service's standards. You should file for custody immediately as a separate matter.
Ashlie's Question: My husband has a daughter due to an affair. The mother does not have custody due to drugs and the little girl is in foster care. My husband and I do have a son together but have been separated for nearly 4 years. I'm wondering what the likelihood of me getting custody of her would be, so she has a stable parent and a big brother.
Brette's Answer: Unlikely unless she is placed with you in foster care or freed for adoption. But you should contact the social worker handling her case and express your interest.
Sally's Question: My husband has sole custody of his 3 children from a previous marriage. I have joint custody from my previous relationship. Both of us are the primary custodial parent (both non-custodial parents aren't that much involved in the children's lives). We also have 2 children together, for a total of 6 children in the home. We have raised all children together for the last 10 years. In the event that either of us dies, would our step children be forced to reside with their biological parent? If so is there a way we could transfer our custody to each other in the event that either of us dies?
Brette's Answer: Generally custody is given to the biological parent in the event of the death of the custodial parent. You can state in your will you want guardianship to be with your spouse. The surviving stepparent can seek custody. In some states stepparents have more rights than others. There's no cut and dry answer. You should consult with an attorney in your state about your options. The other choice to get do an adoption now - get the bio parents to agree and sign off.
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.
Barbara's Question: I seem to be having a very hard time with communicating with my ex-husband. As a result, I have missed school conferences and have recently heard that his soon to be wife has taken my daughter to the Doctor. Is it legal for someone else to take my daughter to the doctor without either of us present?
Brette's Answer: Yes, if he gives permission. It sounds like you need to sit down and get some things straight. If you can't do it on your own, you should try a mediator.
Question: I just found out that my ex-husband had his girlfriend take my 14 year daughter to Planned Parenthood to get on birth control without my knowledge. As far as I know she has never had sex. What rights do I have - She is way too young to be using birth control. And besides that, the girlfriend of about 4 months has no business taking her. Our divorce says that all major medical decisions are to be made by both parents.
Brette's Answer: I think you would have a difficult time getting anywhere with this. She could go on her own and get it without permission, so she doesn't need your permission at all for this.
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 too 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.
Kristel's Question: We are in the beginning stages of divorce and have 3 children. Our oldest son has Asperger's. My husband is in denial that the disorder exists, let alone being involved in his therapy. I am wondering what my options are. I don't want to keep the kids from seeing their dad but I'm worried he will hinder my son's progress with therapy once we are divorced. As of now he has not been involved with his therapy or treatment plans at all. He actually leaves the room when his therapists are here.
Brette's Answer: He doesn't necessarily have to be on board with treatment if he is the non-residential parent. Obviously this will be a big factor when custody is determined, so you will want to be sure you have therapist and doctors ready to testify if needed. Basically, you want to make sure there is a parenting plan in place that will allow you to be the primary parent, with visitation to your ex, but set up in a way that will not hinder your son's treatment.
LeAnn's Question: I share custody with my ex-husband. He recently remarried and is letting his wife make all of the medical decisions for my daughters. I just found out that she has taken my 13 yr. old daughter to two appointments for Depro. What can I do to stop this from happening ever again? My daughter is NO where sexually active, nor does she have any medical need for the shot. We have equal decisions to medical and schooling. I do not approve of this and have told him but he says it's not my business. What do I need to do to make sure they cannot have none-emergency related medical stuff done without my permission?
Brette's Answer: You need to get legal custody changed from joint to sole. You'll have to convince a judge that he is not making appropriate decisions. I think it's going to depend on where you live and what kind of judge you get. Some will see this as responsible parenting. Others will feel it is otherwise. The fact that you disagree about it is a sign that there is a problem. Good luck.
Deanna's Question: Does a non-custodial parent have a right to take his/her child to the doctor when sick or to the dentist during his/her parenting time without first getting permission from the custodial parent if no treatment has occurred? What rights does a non-custodial parent have to meet the non-emergency but acute care needs of their child while in their care? I am the non-custodial parent with 48% of the parenting time. Recently, my 7 year old son was complaining of a toothache. I brought him in to have his tooth checked and discover he has 4 teeth with cavities! I sent my ex a copy of the referral a few hours later, and he hit the roof and threatened to take me to court because I didn't have his permission. He has since refused to inform me if or when or where he is taking our son for treatment. (Nothing in court order except we are to "keep the other advised of medical and dental appointments").
Brette's Answer: Does your ex have sole legal custody? If so, this means he has sole legal decision-making authority. If your order says you are to keep each other advised of appointments though, then I am guessing you have joint legal custody. If so, you have equal legal authority. You're supposed to make decisions together, however I think any court would agree that when a child is in need of medical attention the parent is right in seeking it even if the other does not agree. I think you and your ex would benefit from co-parenting classes. Things would be so much less stressful if you could devise a plan for working together on major decisions
Amy's Question: I recently received a text from my son's father that he was at an urgent care and my son was getting stitches. I wanted to go down there and be there with my son, and asked that he have his girlfriend (who had an affair with him while we were married) leave when I got there to avoid confrontation and because I would not feel comfortable. He refused stating I was going there for no reason. I went anyway, but by the time I got there they were leaving and I never got to see my son. What are my rights?
Brette's Answer: If you share joint legal custody you have the right to participate in medical decisions. However, in an emergency situation it is more important that your son get the care he needs. If I can be frank with you, I think you need to get over what happened with the girlfriend. She might be around for a long time, so the sooner you find a way to cope with it, the better.
I can understand you wanting to see your son at a time when he was hurt. But what would you have had them do? Delay giving stitches and make your son suffer longer? Part of parenting after divorce means understanding that things cannot be the same. You can't always be there.
I know this is hard, but you need to work on moving past what happened. The focus needs to be on your son, not on your unresolved emotions.
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 I can 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. » Return to top
Shannen's Question: My boyfriend and I have been together over four years. He has residential custody and the 14 year old has NOT seen her mom for over a year and a half. She has NO desire to see or speak to her mom. She wants to be legally disassociated from her mother and remain with her dad, but would also like me to have legal guardianship in case her dad is unavailable. Do we go to court and have the minor child tell the Judge how she feels? What is the answer for us to make this change?
Brette's Answer: None of that can happen unless the mother's parental rights are terminated. Your boyfriend can authorize you to make medical decisions in his absence and can list you in his will as guardian.
Teresa' Question: My sister went and got her 12 year old grand-daughter from a crack house a few years ago. The mother is in jail and has been off and on for the last 5 yrs. Her father (who is my sister's son) doesn't want her and could care less about her. My sister desperately wants to keep her. Her grand-daughter needs dental work and medical care, but she has no access to these and can't afford them. What can she do?
Brette's Answer: She needs to get guardianship or custody established. Since the child is with her, this should not be difficult to do. Then she can get state assistance.
Jessica's Question: I have been the sole care taker for my grandchildren (8 and 4 years old) and they have lived with me the majority of their lives. Their father got custody of both kids 2 years ago and initially lived with me and the kids. But because of his verbal and physical abuse toward me he no longer lives here. He remarried last year and visits the kids about 2-3 times a week. Their mother visits about 4 times a year. The step mother had physically abused the 8 year old by sitting on him while he and his father were attempting to leave during an argument with her. His dad wants to take the kids to live with him and both kids do not want to go. They want to continue to only visit with their father. What are my chances of getting guardianship of both kids? Should I file a police report for the sitting event even though I was not present (their father took video of the event)?
Brette's Answer: It sounds like you are in a good position to obtain guardianship. Child protective services would be who you want to involve with respect to abuse.
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.
Jenny's Question: I have had sole legal custody of my four year old since he was 1. He has not seen his father in over 2 years. Since I have sole legal custody, am I allowed to name a guardian in my will and what are the chances of my child going to the guardian and not his dad?
Brette's Answer: You should definitely name a guardian and you should state the reasons for your selection and the reasons you don't want the father. 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. If your child has never had any contact with his father, it's likely he would not have custody. Find an attorney who has experience with this.
C's Question: My daughter (13) is mentally ill with a ton of diagnoses that nobody took seriously until 2 months ago when she took a knife and tried to stab me. I had her arrested. She was found guilty with an 'I can't remember' defense. I never want to see her again. She filed a Child Abuse claim and asked to come back to live with me (ME?) the one she almost killed. I never want to see her again. I am afraid she wants to come back to finish the job.
Can I give full custody to my ex? AND can I get released from any liability (like getting sued) when she knifes the next person... or beats them up... you get the point. We adopted her at 4 months and she came with 'attachment disorder' problems I suspect. My ex loves her, thinks she is adorable (when not beating up other kids) and wants her. But I really believe she is a future school shooter. Please tell me what you think.
Brette's Answer: Yes, you can give up your parental rights to your ex or to the state and you will have no liability.
Tawna's Question: We have had permanent custody of our 2 grandchildren for the last 5 years. The mother has done nothing to get custody and now has 2 more children. The father has since passed away. Is there anything that we can do to arrange for the children to be raised by our youngest son and wife, if something happens to us? And if so, what do we need to do.
Brette's Answer: You can select a guardian in your will, but the decision will be up to the judge at the time. You'll want to carefully document why the mother should not have custody.
Mia's Question: We are going through a divorce. My ex has been out of work for 2.5 years, sleeps all day and is up all night, and hasn't even bothered looking for work. As a result, he doesn't even pay child support. He has visitation every other weekend, but has often cancelled at the very last minute. He rarely calls to talk to kids and is more concerned with his gambling and friends than anything else. If I suddenly die, the kids automatically go to him? No way! He can't look after himself. I would want my mom to have them. She's young, fit, and can financially, emotionally and physically take care of them and still allow my ex rotating weekends. This would be in the best interest of my kids... How do I go about making this happen?
Brette's Answer: Write a will and express your preference and the reasons for your preference. It will be up to the court at the time to decide what is best for your children, but your wishes will be taken into account. You should also consider getting sole custody in your divorce.
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.
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 their mom and dad. 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.
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.
Nicole's Question: If my son's father beat him at 2 weeks old and continues to break the restraining order 11 months later. Can I take away his parental rights?
Brette's Answer: Abuse is definitely a reason parental rights can be revoked. Good luck.
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.
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.
Amanda's Question: My boyfriend wants to sign his rights over to the mother of the child, but they won't let him. They say he can't. Is that true? He never gets to see him anyway.
Brette's Answer: He can agree to sole custody for the mother with no visitation. He cannot change the fact that he is the child's legal father. Termination of parental rights happens only in extreme circumstances. Good luck.
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. 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'll need to consult 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.
A's Question: If a person loses their parental rights, does that mean NO contact with the kids at all? Or could they have contact and even go so far as to take care of them with the other parents' permission?
Brette's Answer: A parent who has custody of a child has the right to decide who that child will see or spend time with, so yes, that parent could decide to allow the child to see a parent whose rights have been terminated. However, I would caution you that if the rights were terminated by a court due to abuse or neglect, deciding to allow that parent contact with the child could potentially call into question the judgment and parenting skills of the parent with custody and could also set you up for a charge of endangering a child.
Amanda's Question: The bio father is on the birth certificate, but his rights were terminated when my ex-husband wanted to adopt our son. The adoption was never finalized and we're divorced now. Can the biological father's rights be reinstated because the adoption was never finalized? If so, would he have to pay child sylupport?
Brette's Answer: No. Once rights are terminated they are gone. The bio dad could adopt the child if he wanted to though, but only if he chose to.
Shiloh's Question: We're separated and my husband has primary custody of our son and I have visitation. We are doing our own divorce paper work and he and his girlfriend brought up the idea of her adopting my son. Basically, they want me to give up my rights to avoid issues with her getting medical care for my son. I am extremely hesitant on this.
If we put it in the divorce paper work that I still get visitations and updates, would they legally be required to allow visitation? Or by giving up my rights does that void anything they "have to" give me concerning my son? What is another solution to their problem?
Brette's Answer: Your ex's girlfriend cannot adopt your child unless you formally agree to the adoption in court by terminating your parental rights. If you did that, you would no longer have any right to see your child and would no longer be his parent in the eyes of the law. Anything court ordered about parenting that pre-dates the adoption become null and void. You would have no parental rights at all.
If, as part of your divorce, you agree to a parenting plan that gives you visitation, you have the legal right to that visitation and it is enforceable. If your ex gives written permission for his girlfriend to obtain medical treatment for your son, there should be no problem with her doing so. There is no reason for her to adopt your child.
I highly suggest you talk to an attorney to help you understand the serious implications of the issues you are dealing with and hope you will not sign or agree to anything until you get some personal legal advice.
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.
Leeloo's Question: My ex-husband passed away in a tragic fire. We had a daughter together. He never wanted children and when I became pregnant we divorced and he gave up his parental rights. He did pay child support until she reached legal age (18 yrs.) here in California. My question is: Is our daughter his legal heir or are his parents?
Brette's Answer: It depends on what you mean by "gave up his parental rights". If his legal right as a parent was permanently terminated by a court, then she is no longer his legal child. If you mean he gave up the right to visitation, then she is a legal heir. If he has a will, his estate will be distributed according to that. If not, it will be by state intestate law.
Lynn's Question: My ex-husband is behind on his child support payments. Would he be able to give up his rights to our son just because he doesn't want to keep paying child support?
Brette's Answer: It depends on what you mean by giving up his rights. If a father agrees to allow the mother to have sole custody or waives his right to visitation, he is still obligated to pay child support. If his parental rights are legally terminated, in most states and situations then child support is no longer due (although arrears would still be owed).
DTC's Question: Two years ago, my ex signed an agreement to give up his parental rights in exchange for not having to pay child support (but continue to have visitation rights). Can I use the signed agreement to gain full legal and physical custody of my son even if my ex-husband still visits and contacts my son? Will my ex-husband have to pay child support if he gave up his parental rights two years ago?
Brette's Answer: The agreement you signed, unless it was entered into an order by the court is not valid. Unless and until a court alters legal custody it stands as set in your divorce, which makes child support payable. A court, upon hearing your case, could decide no child support is due. If he does legally give up parental rights he would not be obligated to make any child support payments ever again.
Julie's Question: We reached a settlement agreement eight years ago in which he gave up his parental rights and I agreed not to ask for child support for the duration of our son's life. It's been over 8 1/2 years, and I need help to support our son. Can I get child support from him or does the Settlement Agreement override everything?
Brette's Answer: If you simply agreed that you would have sole custody and he would have no contact with your son, then you can ask to have the agreement modified. If his parental rights were in fact terminated, then you have no recourse.
Brittney's Question: I'm 22 years old, in school, and totally on my own. When I had my daughter, I wanted to give her up for adoption because I'm not ready to be a parent and I didn't want these responsibilities. But my mom wanted her, so she took me to court for custody and won. My daughter is well taken care of by my mom. How can I end the child support payments if my mom is raising my daughter? I feel really stuck.
Brette's Answer: Why not ask your mother to adopt her? You can consent to the adoption and your child support payments will end.
Kim's Question: My ex-husband hasn't seen or talked to our daughter in over a year. He has been paying child support thanks to the attorney general. I have sole custody, but he has nothing to do with her at all. Can I file abandonment charges or have his parental rights taken away?
Brette's Answer: Since he doesn't visit 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. It would be very unlikely for a court to remove all his visitation rights unless you have a very good reason. Failure to exercise his 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
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