The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.
My ex-husband pays child support irregularly. I’m tired of hassling with him. I want to terminate his parental rights. He says he will give up visitation and sign whatever is required to terminate his rights if he doesn’t have to pay child support. How can I terminate my his parental rights? Can I do that myself? Will I need a lawyer?
Parental rights can be terminated in an adoption case, but usually only when someone new is willing to step into the shoes of the parent whose rights are terminated. Say you have a new spouse who is willing to adopt your kids. You could try to terminate your ex’s parental rights, and transform your new spouse from step-parent to adoptive parent.
Trying to terminate an ex’s parental rights, to leave you as the only remaining parent is much more difficult. That rarely happens.
The law prefers kids to have two parents. Judges do not like terminating one parent’s rights without having someone else step in and take their place. Otherwise, lots of parents who want to avoid child support would be more than willing to give up their parental rights.
A parent’s rights can be terminated as part of a juvenile case. For that to happen, there must be serious abuse and neglect. Also, juvenile cases are filed by the State. it is not something you or a private lawyer can file.
The fact that your ex is willing to agree to have his parental rights terminated does not change things. The courts want someone else who is willing to adopt your kids once your ex’s rights are terminated.
And that someone else would probably have to be your current spouse. Most judges would probably be unwilling to make someone an adoptive parent if that person was not willing to marry the children’s biological parent.
When a parent wants their new spouse to adopt their kid(s), they can file a petition for adoption. If the other parent signs a proper consent to the adoption, it is likely a judge will sign a judgment terminating that person’s parental rights. That makes the step-parent the new adoptive parent.
If the other parent does not consent to the adoption, the people petitioning for the adoption must prove that the non-consenting parent is "unfit." A court will decide that a parent is unfit if that parent:
- Abandoned the child;
- Failed to show a reasonable degree of interest, concern or responsibility in their child's welfare;
- Deserted or neglected their child; or
- Treated their child with extreme or repeated cruelty.
Adoption cases have to be done just right. Terminating parental rights is not something the law takes lightly. So, you should not try an adoption case without a lawyer.