Suspending and Terminating Child Custody Rights

dad with child custody

Introduction

mom had custody of childrenBeing a parent is often described in terms of rights and responsibilities. For example, while the parent of a child is expected to financially support his or her child and take actions that further the general health and welfare of his or her child, the parent is also entitled to visit with the child and participate in the child’s upbringing. So strong are these parental rights that courts generally presume parents are capable of parenting their children and should be afforded the opportunity to do so absent any interference from the government. However, a parent’s rights are not indestructible – a court can suspend or even terminate a person’s parental rights in certain circumstances.

A Review of Custody Rights

Before discussing the suspension or termination of parental custody rights, it may be helpful to briefly review what custody rights parents have. Child custody is a concept that consists of physical custody and legal custody. Physical custody refers to the right of the parent to have the child in his or her physical presence: To visit with the child, spend time with the child, play with the child, and vacation with the child.

Legal custody refers to the right of the parent to make decisions that affect the child: Decisions regarding where the child should go to school, what religion (if any) in which the child should be raised, what extracurricular activities in which the child should participate, and what medical treatment the child should receive.

Parents may have one type of custody and not another: For example, a court may award one parent sole physical custody over his or her child while allowing both parents to exercise legal custody. Or the court may allow both parents to exercise physical custody while allowing only one parent to have legal custody over the child.

Suspension of Parental Rights

Who will get custody of child?A court may suspend a parent’s physical or legal custody rights if doing so is in the best interest of the child. Because of the strong presumption that parents should be able to exercise their rights, a court will only suspend a parent’s rights if the child’s wellbeing is in imminent danger. Thus, before a court will take the rather drastic action of suspending a parent’s physical and/or legal custody rights, a parent must:

  • Physically, mentally, and/or emotionally abuse the child;
  • Physically, mentally, and/or emotionally abuse the other parent in front of the child;
  • Expose the child to a situation or circumstance that either results in harm to the child or put the child in a position where serious harm could have resulted to the child (such as driving while intoxicated with the child in the vehicle or allowing the child to be with a known and registered sex offender unsupervised for a prolonged period of time);
  • Allow his or her physical or mental health to devolve to such a state that the parent is not able of making good parenting decisions (such as a parent with a mental health condition who stops taking his or her medications.

The circumstances that cause the court to suspend physical and/or legal custody rights must be proved by sufficiently-persuasive evidence: mere rumors or second-hand reports are insufficient (even first-hand reports from the child or children that are questionable may not support the suspension of a parent’s rights).

In suspending the parent’s rights, the court leaves open the possibility that the parent whose rights are suspended may reapply to have those rights reinstated. Usually, so long as the situation which caused the suspension has been remedied and the court finds adequate safeguards are in place that would prevent a similar situation from happening in the future, a court would likely be inclined to restore the parent’s suspended rights.