In child custody & abandonment situations (and child support too) biological parents can have their rights terminated by court. Even though the right to being a parent in the USA is a fundamental one , pursuant to the Fourteenth Amendment, states have the power to infringe on those rights. Of course Due Process, also afforded by the Fourteenth Amendment, applies making it a requirement that laws & procedures are fair.
What is Child Custody & Abandonment?
Abandonment, with respect to custody, is when a parent voluntarily fails to have any sort of contact with their child and fails to provide financially for the child for a specified period. It is NOT parental alienation, which is willful interference with the non- custodial parent having contact with their child.
Abandonment can only occur when the biological parent is aware of the child being born. So a parent who seeks Abandonment where the other parent is unaware of the child even exists will have to first prove otherwise. In some states, the period of abandonment only starts from the moment the parent is made aware of the child’s existence.
Proving abandonment is not easy feat, not by a stretch. The courts are not sweet on the idea of depriving parents of such a basic right under most circumstances. The burden is on the parent seeking termination to prove that all the elements are met upon a preponderance of evidence.
Those elements include:
- That the non custodial had noticed of the child; and
- That they willfully chose to withhold contact; and
- They failed to provide any financial support; and
- Set period of continuous non-contact & support; and
- Termination is in the best interests of the child; and
- That a stepparent is ready to adopt the child.
These requirements vary from state to state.
Objections or Defenses to Abandonment
Non-custodial parents may have some valid reasons for being absent or not providing for their child. As I stated above, instances where the custodial parent intentionally interferes with contact is one of them. There are others, like lack of notice of the petition, having no knowledge of the child having been born or if he can prove that termination would not be in the child’s best interests.
A child born out of wedlock, where the father never acknowledged paternity or where paternity was never established, may also be a defense. Most states require that paternity be established first. If the father’s location is unknown, the court may require that the mother incorporate “due diligence” methods in locating him.
Also, if there is not a “fit” stepparent ready to adopt the child, then chances are the court will not order the termination.
A Finding of Abandonment
If all of the elements are met and the court believes that termination is in the best interests of the child, then the biological parent no longer has obligation to support the child. Emotional, physical and financial support are no longer the responsibility of the terminated parent. However, there are some exceptions with respect to the child’s rights to that parent’s entitlements, property, estate, etc. In some states, adopted children may have legal rights to the possessions of their biological parent in the event of that parent’s death.
It is advisable to discuss, in depth, the legal ramifications of termination with all parties involved.
Child abandonment is a very complicated issue and requires the assistance of an experienced attorney.
If you need assistance with your child custody matter, please feel free to contact me for a FREE 15 min. consultation.