Parental Rights

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 What Are Parental Rights?

In the context of family law, parental rights are a parent’s rights to make important decisions and to take actions on behalf of their child or children. These rights are considered to automatically apply to biological parents. These rights also apply to:

Legal rights for parents usually include:

  • Assuming legal and physical custody of their child or children; 
  • Possessing certain rights concerning visitation and contact with their child or children;
  • Making decisions regarding fundamental matters for their child or children, such as:
    • education;
    • religion; and 
    • medical treatments;
  • Passing property to their child or children through inheritance; and
  • Entering into a contract on behalf of their minor child or children.

Parental rights are intended to protect and ensure the well-being of a child or children. Parental rights laws vary greatly from state to state. Regardless of this, a court will interpret parental rights through the lens of the child’s best interest standard.

How do I Get Parental Rights?

There are several different ways an individual can obtain parental rights. Adoption is one way in which this may be accomplished. Adoption requires court approval and permits an adult to become the legal parent of a child that is not their biological child.

Each state has different requirements and conditions prospective parents must satisfy prior to an adoption taking place. There are adoption services offered by public and private agencies. In many cases, adoptions occur when the child’s biological parent remarries.

An adoption establishes a legal parent-child relationship. This means that the adopted child is legally considered as though they were the biological child of the adoptive parent for purposes of:

  • Child support obligations; 
  • Custody obligations and rights; and
  • Inheritance rights, or rights under the laws of intestacy, a will, or a trust.

In cases of legal separation and divorce, each parent may obtain different parental rights with many different combinations thereof. A parent may petition the court to change these rights as the child grows and the needs of each individual involved change.

The rights of the parents in these cases are often referred to as custody rights. The two main types of custody are physical and legal custody. 

Physical custody is the right of the parent to have the child live with them. In cases where the parents live close to one another and the child spends approximately the same amount of time with each parent, a court may order joint physical custody.

Legal custody is the parent’s right to make decisions regarding the child’s upbringing which may include schoolding and medical decisions. It is common for a court to award parents joint legal custody so that they share in the decision making.

Do Non-Biological Parents have Different Parental Rights than Biological Parents?

A child’s non-biological parent is a parent who is not biologically related to the child. This parent may still achieve legal parental status by legally adopting the child. Adoption permits a non-biological parent to have full legal and physical custody of the child.  

In addition to having child custodial rights, a non-biological parent may hold the same rights as a biological parent so long as they are legally recognized as the child’s parent. There are even some instances in which a non-biological parent may obtain more parental rights than the biological parent. This may occur in cases where the biological parent is unable to fulfill their parental duties due to reasons including incarceration, incapacity, or neglect.

If One Parent Transfers Custody to the Other Parent, What Parental Rights do They Still Have?

When a parent transfers custody of a child to their other parent, it does not necessarily mean that the parent who transfers custody loses all of their rights. That parent may still retain some parental rights, especially if physical custody is being split between both parents. This is a common custody arrangement in situations where parents are divorced

The rights that the transferring parent retains are known as residual parental rights. These rights may include:

  • The right to visit the child or children, called visitation rights;
  • The right to consent to the adoption of the child or children;
  • The right to decide on the religious activities of the child or children; and 
  • The right to support or to request support for the child or children. 

It is very important for parents to clearly define their traditional parental rights as well as any residual parental rights that may exist. As noted above, residual parental rights often result from situations involving divorce or legal separation

When a parent is not aware of which parental rights they have, the result can be lengthy legal disputes and, in some cases, the partial loss or complete termination of their rights. A child custody lawyer can help determine what rights an individual has as a parent.  

What Happens if My Parental Rights are Completely Terminated?

There are several ways in which parental rights may be terminated. In most cases, parental rights are terminated by a court order or when the parent voluntarily elects to terminate their parental rights. 

When one parent’s parental rights are terminated, the other obtains control of all the parental rights. If, for some reason, the rights of both parents are terminated, the state will obtain full legal and physical custody of the child.

If a parent’s parental rights have been terminated, it means they are no longer considered the legal parent of the child. This means they must forfeit any legal rights, privileges, and parental responsibility they had over the child. In other words, that parent loses all parental rights and will not be permitted to have visitation rights, custody rights, or the right to make any medical or educational decisions regarding the child.

What Happens if My Parental Rights are Partially Terminated?

Parental rights may either be completely terminated or may only be partially terminated. A partial termination of parental rights likely results in both parents retaining certain rights. A partial termination is frequently caused by situations of legal separation or divorce, as noted above.

There are several different possible outcomes for the parent whose rights are partially terminated. For example, a court may permit the parent to have physical custody of the child but take away that parent’s right to make important decisions for the child, such as for medical treatments. 

In the alternative, the court may permit one parent to make important decisions for the child, such as education and medical decisions, but deny that parent the right to have physical custody. This may occur in cases where the court finds that it is in the child’s best interest to be placed with one parent over another for various reasons.

In addition, the parents may be permitted to create their own agreement that allocates a combination of these rights that best suits their needs and ensures the child’s best interests are met. The court, however, must still review and approve the agreement and issue the final order.

Do I Need a Lawyer for Parental Rights Issues?

Yes, it is extremely important to have the assistance of a child custody lawyer for any parental rights issues you may have. It is important for you to understand and be aware of the rights you have regarding raising your child. Your lawyer can help determine your rights and ensure they are protected.

In the event that a family law dispute arises, your lawyer can represent you in court and provide you with legal support that protects yours and your child’s best interests. If you are in a legal separation of divorce situation, your lawyer can help you come to an agreement that best suits the needs of everyone involved.

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