CAN A PARENT TERMINATE THEIR PARENTAL RIGHTS SO THEY DON’T HAVE TO PAY CHILD SUPPORT?
A common question we receive is whether a parent can voluntarily relinquish their parental rights in an effort to avoid having to provide financial support for a child. Whether the question is posed by a mother whose child has a father who wants little to nothing to do with the child—so the mother would just prefer the father relinquish his rights—or whether it comes from a father who for whatever reasons does not have the financial resources or other means to care and provide for a child.
Before answering this question, it is important that any parent of a child understand what the law in Kansas says with respect to providing financial support for a child. In Kansas, as in many other states, parents have what is known as a common law duty to support their children. As one Kansas opinion eloquently put it, “the duty of parents to provide for the maintenance (or support) of their children is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world.”
It is important that parents understand this common law duty. However, parents in KS also now have a statutory duty to support their children. That is, the Kansas State Legislature has also passed laws that place an onus and duty on parents to provide for their children financially. And indeed, it is arguably because of both this common law duty, and statutory duty, that Courts in Kansas have made it clear that a parent cannot simply elect to relinquish their rights by signing them away to avoid providing financial support for a child. As again noted by a Kansas court, “[t]his common–law duty of support continues until the child reaches the age of majority, (which in KS is 18), or until the death of the child.” This again means that a parent cannot simply voluntarily elect to relinquish their rights over a child simply for the purposes of avoiding child support.
So then the question becomes, is there ever a situation where a parent’s duty to support a child can be terminated? The answer in Kansas is yes. However, the circumstances under which this can happen are not ones where a parent can simply decided to relinquish rights to avoid support.
The reason there are situations where a parent’s duty to support a child can be terminated is because the duty to support a child has to terminate upon parental rights being severed. Simply put, the only scenario where a parents duty to support a child can terminate is a situation where that parents rights are also being completely terminated.
This means there would have to be a formal Court proceeding where a Court of appropriate jurisdiction formally terminate a parent’s rights over a child—meaning that parent would no longer have the ability to make any decisions regarding the child, or have any rights to see a child. In such a scenario, that parent’s duty to support a child would also be terminated.
In Kansas, courts have recognized only three statutory methods by which parental rights are, or can be, terminated:
adoption, under K.S.A. 59–2111 et seq.;
termination of parental rights under K.S.A. 38–1581 et seq. (this would be a situation where the State would institute a proceeding because it believes a parent or set of parents is not capable of adequately caring for a child, and thus the state is seeking to terminate parental rights); and
relinquishment of parental rights under K.S.A. 59–2124. – (this would be a situation where a parent or parents would formally petition a Court, asking that they be permitted to relinquish rights and custody of a child to an state approved agency).
Simply put, the only three methods by which parental rights can be terminated are: (1) adoption; (2) the state filing to seek to terminate rights; or (3) a parent petition the Court to ask a state agency assume custody of child. As you will hopefully quickly see here, there is truly only one scenario then where a parent could even theoretically work with another parent to terminate one parents parental rights, and that’s adoption. Meaning if one parent were to marry, or simply find another third-party willing to formally and legally assume responsibility of a child through a formal adoption proceeding, the other parent—assuming the Court were to approve the adoption—could have their parental rights terminated, and in doing so also have their duty to support their child.
In general, a biological parent is granted both fundamental and constitutional rights to parent their children. Even a parent who has been absent from a child’s life will still have some sort of claim to parental rights over their child.
The one exception to this general rule of thumb is if an absent parent’s parental rights have been legally terminated by the court. This can happen when the present parent files a petition and meets all of the requirements to terminate their rights.
A biological parent will also have certain legal duties that they are expected to uphold to provide proper care for their child. If a biological parent fails to uphold these duties, however, then there may be grounds to terminate that parent’s rights over their child and/or to remove their child from being under their care.
To learn more about how to file a petition for an absent parent’s rights in your state, you should contact a local child custody lawyer as soon as possible for further legal guidance.
What Parental Rights Do Absent Parents Have?
Generally speaking, every biological parent has the right to obtain physical custody over their child. Every biological parent also has the right to make important legal determinations on behalf of their children as well. Under family law principles, these parental rights are usually the ones that are recognized no matter the level of involvement that a parent has in their child’s life.
Some examples of both physical and legal parental rights may include the following:
- Making decisions concerning the type of medical treatment or the level of medical treatment that a child can receive, such as getting a specific surgery or receiving a shot to be vaccinated from some disease;
- Determining where a child should attend school and their arrangements for living during the week; and/or
- Deciding how to raise a child in regard to their religious upbringing.
A parent will typically be granted the parental rights in the above list even if they are absent from a child’s life. However, the other biological parent will be permitted to take legal action by filing a petition to terminate an absent parent’s rights if they so desire.
In many cases, an absent parent is often described as an individual who has taken some sort of action that makes it seem as if they have abandoned their child. For example, an absent parent may not make any effort to see or bond with their child throughout the year or only visits them every several months.
Most of the time an absent parent usually does not live with their child and sometimes even lives in another state or county. This can often result in the other biological parent having to raise their child all on their own; typically without any financial or physical support.
What Parental Duties Must Biological Parent Uphold?
According to various family law principles, a biological parent is required to perform certain parental duties for their child. The two primary duties that all biological parents are typically expected to carry out are as follows:
- Duty to provide for the child: This duty refers to providing a child with basic needs, such as medical care, education, food, shelter, clothing, and so forth. Basically, any necessities that would require financial support or child custody payments.
- Duty to care for the child: As for the duty to care for a child, this means keeping a child safe from harm or abuse and looking out for their well-being. It also means that the child’s emotional, physical, and mental needs meet the best interest of the child’s standard.
An absent parent will not normally be able to fulfill these two duties since they are not present in their child’s life. Accordingly, the parent who is still in the child’s life may try to terminate the absent parent’s rights over their child.
How Can an Absent Parent’s Legal Rights be Terminated?
In order to terminate an absent parent’s legal rights over their child, an individual (usually the child’s present parent) will need to file a petition to terminate the absent parent’s parental rights over their child in their local family court. A judge will then review the materials submitted, analyze the facts of the case, and determine whether the absent parent’s legal rights over the child should be terminated or not.
As mentioned, the other biological and present parent will normally be the one to file a petition in family law court. There are certain situations, however, in which the child’s other parent may be absent as well.
This can happen when they are incapacitated, incarcerated, or deceased. In such a case, another close family member, an appointed legal guardian, or a state agency, such as child welfare services, may be able to request that an absent parent’s rights be terminated.
A petitioner who is filing a request to terminate an absent parent’s parental rights over their child must be able to prove a number of factors. In the majority of cases, the petitioner will need to prove that an absent parent has acted in a manner that contravenes the child’s best interests standard. Some common examples of actions that may be against a child’s best interest include:
- Failing to prove that they are in fact the biological parent of a child (e.g., with a DNA test);
- Acting in a manner that is considered to be aggressive or abusive towards the child;
- Committing a crime either in front of a child or being convicted of a crime that lands them in jail and leads to a criminal record;
- Abusing the other biological and present parent (e.g., through violent acts that qualify as domestic violence or spousal abuse);
- Acting in a manner that would demonstrate that the absent parent was unfit to raise or care for their child (e.g., being an unrehabilitated addict, participating in illegal activities that could get their child hurt, etc.); and/or
- Abandoning the child in some way, which happens to be one of the most cited reasons for filing a petition to terminate an absent parent’s rights over their child. In most states, a biological parent must prove that the absent parent has had no contact and has not seen the child for at least four months or longer.
It is very important to keep in mind that most courts will be reluctant to terminate a biological parent’s rights entirely, even if they are largely absent from a child’s life. A judge may consider such a request, but will most likely only grant the petition when there are dire circumstances. These include violent behavior or being able to demonstrate that a parent has clearly abandoned their child based on the length of time that they have not visited or had contact with their child.
In some cases, a judge may be persuaded to grant a petition to terminate an absent parent’s rights when a stepparent or some other close relative is attempting to adopt the child. If such circumstances fail to sway the opinion of the court, a judge may still grant the present parent a greater extent of legal rights like being the parent who creates the visitation schedule.
After an absent parent’s rights have been officially terminated by a court, it means that the parent will no longer be considered the legal parent of their child under the law. This also means that the absent parent will no longer have the right to make any decisions on behalf of the child and will lose their right to child custody and/or visitation.
Additionally, a parent whose rights have been terminated will no longer be required to pay child support since they will no longer be considered the legal parent of the child. A child will also no longer have the right to inherit any money or assets from a parent who has lost their parental rights over them.
Do I Need an Attorney to Help with Termination of Parental Rights?
Having to terminate the legal rights of a parent who has been absent from a child’s life can be extremely distressing and complicated. This is especially true in cases where an absent parent fails to be located.
In such instances, the burden of proof will usually rest on the individual who is filing the petition for terminating an absent parent’s legal rights over their child. The petitioner will be asked to prove why an absent parent’s rights should be terminated and that terminating an absent parent’s rights would be in the best interest of the child.
It is important to remember that the rules of evidence and the legal procedures for terminating an absent parent’s rights will vary from state to state. Thus, it may be in your best interest to hire a child custody lawyer in your area if you intend to file a petition to terminate an absent parent’s rights.
An experienced child custody lawyer will be able to recommend your best course of legal action and can explain how the laws in your jurisdiction will affect the outcome of your case. Your lawyer can also assist you in filing the petition and can draft any other legal documents that may be necessary for your case.
In addition, your attorney can address any concerns or issues that you may have about terminating the rights of an absent parent. Finally, should you need to appear in court and need legal representation, your lawyer can provide these legal services as well.