Clearing the Air: Losing Child Custody vs. Termination of Parental Rights (Virginia)

by Philip Yabut in , , , ,

"mother and duckling" by author A common misconception in family law is that loss of child custody amounts to a termination of parental rights.  These are very different terms with very different legal consequences:

LOSS/LIMITATION OF CHILD CUSTODY: You lose the physical custody of your child (he/she lives with the other parent full time) and/or the ability to make decisions as to your child's daily care.  However you still have the right to ask for visitation.  You also maintain the right to challenge or change the custody determination at a later date.  You legally still have a say in influencing your child's values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise.  And, most importantly, you maintain responsibility to support your child financially (i.e., you are not excused from child support!).

TERMINATION OF PARENTAL RIGHTS: You lose all of your rights over your child, and with it any right to be involved in your child's life.  Effectively, you are no longer legally recognized as the parent, meaning you have absolutely no rights of visitation, and the child will no longer be able to inherit from you or vice versa absent a will saying otherwise.  This also means you no longer have the responsibility to give the child any financial support.

The bar for court-ordered termination of parental rights is also much higher than a change in custody arrangements.  For custody, a material change in circumstances for either or both parties is necessary.  However, a complete termination can only arise from clear and convincing evidence of abuse and neglect.

While a parent can voluntarily give up custody rights, it is not possible to do the same for parental rights.  That is, you cannot "sign over" your parental rights to the other parent.  Only a court can terminate parental rights, and it will only do so if there is a third person ready to "take over" care and support for the child.  A proceeding for termination of parental rights must start with a petition to the Juvenile and Domestic Relations Court, after which the judge will appoint a guardian ad litem for the child and the Department of Social Services will begin a thorough investigation.

Parental rights are also terminated as a matter of course in adoption cases.  In cases of giving up a child for adoption to a non-relative, your family members also lose rights of visitation and inheritance.

Further information: Virginia Legal Aid Society: Termination of Parental Rights

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