Custody, Visitation And Termination Of Parental Rights
The phrase “termination of parental rights” (TPR) is widely misunderstood. The following explores what TPR means for families in Virginia as well as other issues surrounding child custody and visitation matters.
Custody And Visitation
Often, when you hear someone refer to a parent’s rights as being “terminated,” what they are actually describing is a custody hearing where one parent was awarded sole legal and physical custody and the other received no custody and no court-ordered visitation. In that situation it is legally incorrect to state that anyone’s parental rights were “terminated.” A custody hearing does not permanently terminate anyone’s constitutional rights and leaves room for the arrangement to be changed in the future. That being said, granting sole legal and physical custody to one parent, while possible, is not favored by the courts because it severely limits the noncustodial parent’s communication with his or her child.
In family law, “parental rights” means much more than simply custody and visitation. For instance, if the parents’ and child’s circumstances change, the parent who does not have custody and visitation can file motions to amend custody and visitation in order to reverse the court’s previous ruling. The noncustodial parent still has the right to file, the right to be legally considered the child’s biological parent by the school, the right to have another hearing, the right to present evidence concerning custody and visitation, and usually a right of access to the child’s education and health care records; those parental rights continue and are not terminated by changes in custody or visitation.
Changes To Custody
The courts can and do reverse previous custody orders if convinced that it is in the child’s best interests to do so. For example, a change in custody can occur if a parent becomes sick or injured and is unable to continue to care for the child. Also, a child can express a very strong desire, as they grow older, to change households, and the courts do take the wishes of the child into consideration. If a noncustodial parent wants to have custody or additional visitation they should continue, as best they can, to be the best possible parent for their child.
Termination Of Parental Rights
In Virginia, “Termination of Residual Parental Rights”, is a far more serious matter. It terminates all of the biological parent’s rights and duties concerning their child. This includes terminating the parent’s rights to file motions for custody or visitation at any time in the future, and it terminates the duty to pay child support. It makes the former biological parent “a legal stranger to their child.” Termination of parental rights is the most serious action the courts can take concerning parents and children, and it is not done lightly. The judge must be convinced that TPR is in the child’s best interests.
Reasons Not To Terminate
Filing to terminate one’s own parental rights in order to avoid paying child support is generally denied as it is not in the child’s best interests. Also, even if granted, terminating parental rights does not erase arrearages. Any back child support is still owed.
Occasionally a parent who has custody files to terminate the other parent’s parental rights because that parent has neither visited their child nor paid any child support. Those deficiencies, standing alone, are generally not serious enough for a court to terminate the deadbeat parent’s parental rights because the absent parent may eventually “step up to the plate,” act like a parent, and be a resource for their child.
Examples Of TPR
Because it is so serious, TPR occurs under very limited circumstances. Below are some examples of when TPR may be granted by the court:
Foster care: TPR does not immediately occur when a child is placed in foster care. The first goal of foster care is always to return the child to the biological parents or relatives. A lengthy process must be followed before TPR is considered. However, it can eventually occur if the case is likely to proceed to adoption.
Adoption: Because adoption legally creates a “replacement parent,” the child’s biological parent’s residual parental rights must be terminated. For instance, in a stepparent adoption, the biological parent who is being replaced appears in court and either objects to or agrees to the termination of their parental rights. Obviously, a stepparent adoption goes much more smoothly if the biological parent agrees. TPR does not happen casually, outside of court.
What does “residual parental rights” mean? As described above, it means every legal right directly related to the child, including the right of a parent to bring a court case concerning the child in the future.
Can TPR be appealed in Virginia? Yes. In Virginia, generally TPR begins in the Juvenile Domestic Relations (JDR) Court. From there it can be appealed to the Circuit Court for a new trial. From Circuit Court it can be appealed on legal grounds to the Virginia Court of Appeals. The final appeal in the Virginia court system is to the Virginia Supreme Court.
Can TPR be appealed to the U.S. Supreme Court? Yes, but appeals must occur in the Virginia courts and the U.S. District Court and U.S. Court of Appeals first and must state at least one genuine issue that relates to the U.S. Constitution or to another federal matter.
Are TPR appeals easy? No. Appeals must be very carefully researched and written, and deadlines are strictly enforced.
How long does a TPR appeal take from start to finish? There is no set time, but an appeal from Circuit Court to the Virginia Court of Appeals can take one year.
How much do TPR appeals cost? Even if the attorney is court-appointed the parent may eventually be billed by the Virginia Supreme Court for the costs of their TPR appeal, which includes the expenses for a court reporter, transcripts and printing, which can total several thousand dollars.
Is a TPR appeal worth it? Over 90 percent of all appeals are ultimately dismissed. Occasionally a legal issue arises where a judge, for example, misinterprets the wording of a Virginia code section (judges are human, after all), and that appeal may succeed. The grounds (legal reasons) for the appeal should be carefully discussed with counsel before committing to an appeal.
Contact Our Lawyer For Help With Your Custody Issue
At the office of Leigh S. Gettier, Attorney at Law, we can help resolve even the most contentious child custody matters. We provide a free, 20-minute in-office consultation to all first-time clients. To schedule an appointment, call us at 540-582-5551 or contact us online. We represent clients throughout the Fredericksburg, Stafford and Spotsylvania regions.