Understanding Parental Rights and Duties
The parents of a child are given certain rights under Florida Law. For example, parents have the right to have physical custody of the child. A parent has the right to make major decisions about the child’s health, education, and religious training. Also, when I say legal parent this includes biological as well as non-biological parents lie step-parents, or other persons who are a guardian to the child.
Parental Duties in Florida
A parent can lose their rights if they don’t fulfill their duties. The following are all reasons why a parent could lose their parental rights:
- Failure to provide for your kids food, apparel and housing.
- Bearing the expense for medical coverage and medicine.
- Not taking your child to school.
Losing Parental Rights
You could be facing termination of your parental rights or you could be attempting to terminate someone else parental rights. A Termination of Parental Rights Court Action Permanently severs the rights of the biological parent and allows the child to be adopted or taken into the care of the state. According to studies, 1% of children will face termination of parental rights before they are 18. This can be done because of allegations of abuse or neglect. Sometimes, it is associated with a Step-Parent Adoption.
Voluntary Termination vs. Involuntary Termination
Voluntary termination occurs when a parent voluntarily agrees to give up their biological rights. In Florida, a parent can sign a document to terminate their parental rights. For example, a parent unable to take care of their child may feel that it is in the best interest of the child to surrender their rights to a person they know such as a relative who would be better able to take care of him or her.
Note: even if the biological parent and the custodial parent agree to the termination of parental rights, the court will still determine if this is in the best interest of the child. There is a belief that having two parents is in the best interest of the child.
The other time a parent can lose their parental rights is through an involuntary action. This is most common when there are allegations of neglect or abuse and the State is the Plaintiff and is trying to protect the child. However, a parent can also bring an action against the other parent if they feel that the other parent is abusing the child. We will look at a case study of this below.
Florida Law on Termination of Parental Rights.
Grounds for involuntary termination of parental rights.
Step 1: Factors the court looks to decide if parental rights should be terminated.
There are several factors that the court uses to determine to terminate parental rights, including:
- When the parent has the parental rights of a sibling of the child, they could also terminate the parental rights of the child. The murder of a sibling.
- Where it is proven that the parent abandoned their child under Florida Law. Click here for more information on what is considered abandonment.
- Continuing behavior that threatens the life, safety, well-being of the child.
- A parent is going to be in jail for a long time.
- Case plan violations-This is when a child has been adjudged vulnerable and the parents fail to follow a court ordered parenting plan.
- Failure to cultivate and maintain a relationship with the child.
- Any other factors that court considers relevant.
- History of substance abuse.
- If the child is conceived through sexual battery.
To read the actual Florida law click here to go to the page.
Step 2: Is Termination in the best interests of the child?
Once the court decides that there are sufficient grounds or factors to terminate parental rights, they then ask if it is in the best interest of the child? The list of what is considered is the best interest of the child is found in Florida Statutes. Some of the factors include:
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
Case Study: Involuntary Termination after divorce
There was a recent case where the father had remarried and his new wife wanted to adopt the child that the father had with his ex-wife. He had divorced his first wife and in one state then moved to Florida. The ex-wife had her parental right suspended and during this time the father had moved to Florida where he remarried.
My client, the mother, faced several challenges that she had to overcome in order to protect her parental rights.
Challenge 1: Past criminal behavior
My client had her parental rights suspended because she had to go to jail on a drug charge. If this wasn’t bad enough, the father used this opportunity to make the move to Florida that I mentioned above. Furthermore, he didn’t leave his forwarding address, which I will talk about a little later. Several months later, when my client was released from prison, she agreed to go into a treatment program to recover from her drug addiction.
New start new challenges.
Once she successfully graduated from the treatment program and paid off her fines she began the search for her child. After hiring a private investigator and some Google research she located them in the State of Florida. She quickly filed a motion to reinstate her parental rights. Not long after she had served her ex-husband, he married his girlfriend and filed a petition for stepparent adoption with a petition for termination of parental rights. More on step-parent adoption can be found here.
The issue of abandonment
I mentioned above that one of the grounds for termination of parental rights is abandonment. Part of the official definition of abandonment in Florida can be found here, but goes:
“Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.Florida Statutes Section 39.01(A)
Examples that the courts use to determine abandonment include:
- Failure to create and maintain a positive relationship with the child.
- Failure to provide financial support when able.
- Marginal efforts to take care of their child.
Back to our case:
How to Protect Your Parental Rights in Florida-Example of a Termination Action.
If some is trying to take terminate the rights of your child, you will in most instances be very concerned and want to know the best way to proceed. In this section, we will look at a hypothetical case from beginning to end. I will also show how I handle these cases and the benefit of having legal representation.
Hypothetical Case: Mother attempts to terminate father’s parental rights.
A mother claims that the father has not been good to their children, has a drug problem, and has failed to have a good relationship with his children.
The case begins…
The father, “Mike” in our hypothetical case is sitting at home at hears a knock at the good. When he opens the door he is handed papers-he has been served with legal papers!
Having never been involved in a legal matter before, especially as a defendant or respondent he ponders his options. A friend of his recommended my legal services and we soon set up a consultation. Luckily, Mike doesn’t hesitate and he calls me the day after he is served. This is smart thinking because normally you only have 20 calendar days to file or answer or a default can be answered against you-which is like losing automatically without getting his day in court.
Creating a Theory of the Case
Early in my representation of any party, I develop a theory of the case. It is a written summary of the facts as well as emotional and legal reasons why the judge should rule in my party’s favor.
Common theories I have used include:
- The parent has not done what it is alleged in the complaint. For example, the parent never abused the child.
- Although the parent had issues in the past, they are now a fit and able bodies parent. For instance, Mike has been sober for over five years.
- There is not a connection between the issues the parent has and the ability to be a good parent. For example, despite a mother has a mental illness, this is not impacting her parenting.
- The parent’s condition or behavior is not severe enough to warrant termination of parental rights.
After talking with Mike I come up with the following theory of the case:
Mike has maintained sobriety for several years and it no longer has any impact on his parenting ability. Although he has suffered from depression there is no connection to his ability to parent. Finally, despite his shortcomings, there is not enough evidence that would warrant a court terminating his parental rights.
Identify good and bad facts
In order to test your theory of the case, I come up with Mike’s help, I come up with the following facts that both prove and disapprove his case:
|Positive Facts||Negative Facts|
|No longer drinking||Has depression which was untreated for several years|
|Close relationship with children.|
|Ability to maintain relationships despite issues|
|Completed a treatment plan|
When I look over the lists I created I feel that my positive facts outweigh my negative ones and feel that my theory of the case is strong enough to go forward. If my negative facts outweighed by positive facts, I would have to go back and work on a better theory of the case.
How to Fight Termination of Parental Rights?
Responding to a lawsuit to terminate your parental rights.
There are several things you should do if faced with a lawsuit. First, you always want to carefully read the papers that are served on you. This will tell you basic information that is vitally important to protect your rights. For example, it will tell you who is suing you, what court the case is in as well as how much time you have to respond to the suit. In Florida, you normally have 20 calendar days to respond to a suit.
Next, you must provide an answer to the lawsuit. Carefully read the petition. For every item, you must respond with an answer or it will be deemed admitted or true. After you fill out the answer, you must file a copy with the court where the case is begin held as well as the party who is bringing the action-the plaintiff or petitioner.
Finally, you must go to a hearing. The hearing is where the other side will present their evidence and you will get to present yours. Evidence will include witnesses, documentations, and sometimes media like video or audio presentation.
If you hire an attorney like Joseph Lipinski they will help you through this process. The attorney will help you draft your answer and other documents, negotiate with the other side and represent you in court.
I hope you find this information useful and if you have any questions please feel free to contact me with any questions regarding premarital agreements or other family law matters.