A biological parent typically has both fundamental and constitutional rights to parent their child. Even a parent who is absent from their child’s life still has some parental rights, unless such rights have been legally terminated. These may depend on various factors, including any applicable state laws.
Biological parents also have certain legal duties that they are expected to uphold in order to care for their children. If they do not uphold these duties, then there may be grounds to terminate a person’s parental rights and remove the child from their care.
What Parental Rights Do Absent Parents Have?
All biological parents have the right to physical custody of the child, as well as the right to make important legal decisions on behalf of their child. Family law generally recognizes these parental rights regardless of the level of parental involvement in the child’s life.
In addition to physical custody rights they will also have legal rights. Some examples of legal parental rights can include:
- Decisions regarding the level or type of medical treatment a child receives, like having surgery or being vaccinated;
- Where a child lives;
- Where a child goes to school; and
- Making decisions about a child’s religious upbringing.
If a parent is absent from their child’s life, then they will generally still have these parental rights. The other biological parent would need to bring a court action to terminate the absent parent’s rights if they so desired.
An absent parent is often viewed as someone who has appeared to abandon their child. They may not live with the child or make an effort to see or bond with their child for several months or years. This can often leave the other parent to raise the child on their own.
What Parental Duties Must Biological Parent Uphold?
Under family laws, biological parents are expected to perform certain parental duties for their child. The two major duties that are generally expected from biological parents are:
- Duty to Care for the Child:This includes meeting a child’s physical, mental and emotional needs, and reasonably protecting a child from outside harm or abuse; and
- The Duty to Provide for the Child:This includes providing a child with basic needs such as food, shelter, medical care, education and other financial needs.
An absent parent will usually not fulfill these parental duties since they will not be present in the child’s life. As such, the other biological parent may sometimes attempt to terminate the absent parent’s parental rights.
How Can an Absent Parent’s Legal Rights be Terminated?
In order to terminate their rights, a petition to terminate an absent parent’s parental rights will need to be filed in family court. The judge will then proceed to review the case and the circumstances and determine whether parental rights should be terminated.
The other biological parent will usually be the person filing the petition with the family law court. However, in situations where the other parent is also absent or deceased, another family member, legal guardian or state agency can request that parental rights be terminated.
In order to request that an absent parent’s parental rights be terminated, the petitioner must prove various points. In most cases, they must prove that the absent parent has acted in a way that does not promote the child’s best interests. Some common examples of this may include:
- Abandonment of the child (this is often the most common ground for requesting termination of an absent parent’s parental rights. In most states, the biological parent must show that the absent parent has not seen or contacted the child for at least four months);
- Neglecting or abusing the child;
- Acting in a manner that is considered unfit to parent the child (being a drug addict or participating in illegal activities that could harm the child are examples of this);
- Committing a crime;
- Abusing the other biological parent (a.k.a. domestic violence; and/or
- Not being the actual biological parent of the child (as proven by a DNA test).
Keep in mind that most judges are hesitant to completely terminate a biological parent’s rights. Many courts will consider the termination request, but may only grant the request in circumstances that show clear abandonment or other extreme behavior by the absent parent.
If a step-parent (or another individual) is trying to adopt the child, this will generally help sway a judge to grant the petition. If not, the judge may still grant a parent certain legal rights, such as implementing a new visitation schedule.
If a parent’s rights have been officially terminated, then that person is no longer considered the legal parent of the child. That person will no longer have any rights to make any decisions on behalf of the child or have custody/visitation rights. That person will also not be required to pay child support, since they are no longer viewed as a parent in the eyes of the law. On top of that, the child will no longer have the right to inherit from their biological parent, who has now lost their parental rights.
Do I Need an Attorney to Help with Termination of Parental Rights?
Terminating the legal rights of an absent parent can be extremely complex and emotional. This is especially true if the absent parent cannot be located. The burden of proof generally will be on the person who is filing the petition; they must prove that the absent parent’s parental rights should be terminated and that it is in the child’s best interests.
Keep in mind that the procedure and evidence needed will vary based on your state’s laws. In this situation it is important to consult with a local child custody attorney to discuss your legal options and rights. An attorney can also help you gather information and evidence to navigate the family court process.