One of the most contentious parts of a divorce case is the issue of child custody. You can probably imagine two parents fighting to have possession of their children. But custody cases can work the other way, too: Occasionally, a parent will seek voluntary termination of parental rights. Can someone even do this? The answer is yes, but it is not easy. So today’s blog will answer the question, can you relinquish custody of a biological child?
It Is Not Easy to Relinquish Custody of a Biological Child
The first thing to know is that it is not easy to achieve termination of parental rights. In fact, it is extremely difficult. This is because of how Texas family law works.
The Texas Family Code Section 153.002 states: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
This means that a judge is only somewhat interested in what a biological parent may or may not want. The court will make its ruling based on what it thinks is in the best interests of the child. Things the court evaluates include:
- The child’s present and future emotional and physical needs;
- The parenting abilities of the persons seeking custody;
- Each parent’s plans for the child;
- The stability of each parent’s home;
- Any existing or potential dangers to the wellbeing of the child;
- The child’s state desires;
Thus, a parent seeking to relinquish custody must be able to explain how this outcome would be in the best interests of the child.
Texas Law Provides Specific Reasons for Terminating Parental Rights
The law does provide specific reasons for allowing parents to relinquish custody of a biological child. For example, termination of parental rights can occur if the mother or father has voluntarily left the child alone or in the possession of the other parent, and has clearly expressed an intent not to return.
In addition, the court may grant the request if the parent has been convicted of a crime, or failed to provide adequate support for the child and remained away from the child for at least three months.
The Texas Family Code Section 161.001 explains all of the reasons for terminating parental rights. The main thing to keep in mind that if the court is actively seeking termination of parental rights, you probably did something wrong. And you may end up paying a fine or going to jail for it.
It Can Be Expensive to Relinquish Custody of a Biological Child
In order to legally end the parent-child relationship, you must file a petition with the court. You will have to pay a filing fee. You also may have to submit a sworn statement declaring your intention to relinquish custody. The court will review the petition, and a trial is held. This is called a Suit Affecting the Parent-Child Relationship, or SAPCR.
In addition, the court may appoint a lawyer to represent your child. The Texas Family Code Section 107.001 refers to this lawyer as an attorney ad litem. This lawyer will conduct interviews and gather information about your request. The lawyer also will appear at hearings, and make recommendations to the judge. If the other parent is absent or unknown, the court may appoint an additional attorney to represent that person.
As you are probably beginning to see, the process to relinquish custody can be both time-consuming and expensive. You will probably need to hire an attorney to provide you with legal advice. You may also have to pay for your child’s lawyer. And you may even have to pay for the attorney of the absentee parent.
Many People are Not Permitted to Terminate their Parental Rights
Perhaps the most important thing to know about termination of parental rights is that the court is likely to decline your request. This goes back to what we originally stated: Courts make decisions based on the child’s best interests.
The court is even more likely to refuse your request if the other parent does not support voluntary relinquishment, or if there is not someone else ready to adopt the child.
Note this does not mean it is impossible to relinquish custody of a biological child. However, you need to be prepared for a case that could be difficult—and costly.
What Does It Mean When You Relinquish Custody of a Biological Child?
Termination of parental rights is a big step. Once you relinquish custody, you surrender all the rights of the parent-child relationship. For example, you are no longer allowed to visit the children or discipline them. You are not even allowed to have contact with them.
True, voluntary termination of parental rights means you no longer have to support the child financially. However, it does not release the mother or father from payments that are overdue. Although future payments will not be required, any debts must be paid. Read our blog on how to get out of paying child support in Texas.
Your child also is likely to lose his or her right to any inheritance from you. Perhaps most significant, the court will issue a new birth certificate for the child, with your name removed. This is another reason why people should think carefully before they terminate their parental rights.
Voluntary Termination of Parental Rights During Pregnancy
Women who are unmarried and pregnant sometimes choose to terminate parental rights voluntarily. After the child is born, this allows the mother to give the child up for adoption. A mother who wishes to relinquish custody of the child may file a petition with the court anytime after her first trimester of pregnancy.
Once the petition has been filed, the court will hold a hearing at least five days after the child is born. This gives the mother a chance to change her mind. The mother also can sign an affidavit of voluntary relinquishment. She must wait at least 48 hours or more after the child is born.
Of course, a mother cannot surrender a child for adoption without the consent of the father. If he also wishes to relinquish custody of the child, he may sign an affidavit of waiver of interest. By signing this document, the man is declaring that he wishes to have no further involvement with the child. The man can sign this affidavit before the child is born. Read our blog on father’s rights during and after a divorce.
Be aware that signing a document is not the last step. The process is not complete until a judge has signed a court order officially terminating parental rights. Again, this is because the court has to focus on the child’s best interest.
What If Your Ex is Threatening to Relinquish Custody?
As we have seen, it is not easy to terminate your parental rights. Even so, if your ex has mentioned relinquishing custody, you need to take this seriously.
You can start by trying to determine your ex’s motivations. Most likely, he or she is trying to “get something” from you. For example, he or may want to pay less child support. Or perhaps your ex wants more time with the children.
Whatever the reason, we advise you to proceed with caution. Before you agree to any change in your divorce custody agreement, we encourage you to talk with a lawyer. If your ex knows that you are going to hire a family law attorney, he or she may back off on the threats. Alternatively, the lawyer may help the two of you negotiate an amended agreement that is fair to both of you. For example, you may be able to agree to lower child support payments or more visitation time.
Is Your Ex Trying to Force Terminating Parental Rights?
You also need to be careful because a parent who is willing to relinquish custody legally may also be willing to do it illegally.
For example, he or she may refuse to work or try to get paid in cash. This will put your ex behind on child support payments. The person may even try to disappear, making it impossible to collect payments.
If you have any concerns about your ex, don’t ignore them. One thing you can do is try your best to keep track of your ex, such as where the person is living, and where he or she is working. Of course, that can be difficult, but friends and social media can be helpful.
Keep in mind, if your ex does try to skip out on his or her responsibilities, the more information you have, the easier it will be for the courts to help you.
Family Law Attorneys Experienced in Custody Cases and More
Cases to terminate parental rights can be complicated and emotional. The attorneys of the Maynard Law Firm are experts in family law. With two offices in Tarrant County, our law firm has years of experience handling divorce and custody cases.
We offer a no-cost initial consultation and, if you prefer, we are willing to meet with you on video. Don’t let the stress of divorce overwhelm you – contact us today at 817-335-9600.