Should I surrender parental rights or wait until the State terminates my rights?

April 12, 2017

A parent who has been trying to reunify with his or her child and regain custody from DFCS may end up facing the difficult decision of voluntarily surrendering his or her parental rights or going through with a contested termination of parental rights hearing.  In a successful surrender of parental rights, often referred to as a “VR” or “voluntary relinquishment”, a parent offers to surrender via certain paperwork, and DFCS accepts the offer.  The paperwork can be signed out of court, in which case the parent would have 10 calendar days to withdraw in writing the surrender, or it can be signed in court and the parent can waive or give away his or her right to the 10-day withdrawal (also called “revocation”) of the surrender.  Even where a parent has surrendered his or rights, he or she may still be obligated to pay child support until his or her child is adopted.  When DFCS knows that a parent has no intention of paying child support, it can refuse to accept the surrender, and can proceed with an involuntary termination of parental rights.  If a parent’s offer to surrender parental rights is accepted by DFCS, the parent cannot appeal the voluntary surrender because it is in effect an agreement, or contract, which waives rights of appeal.  At a contested termination of parental rights, or “TPR” hearing, the judge will hear testimony and consider evidence on whether any of the statutory grounds for termination exists and if termination is in the child’s best interests.  DFCS will have the burden of proof to show both by the “clear and convincing evidence” standard, which is higher than 51% but lower than 99%.

Once the Department files a TPR petition, a parent cannot voluntarily surrender his or her child except she may consent to a judgment terminating her parental rights and execute an act of surrender in favor of the Department or into a third party if all the parties to the petition (including her children) agree.  When a parent consents to a judgment, she loses the right to appeal such judgment.

When a TPR order is issued by a court, the parent is not entitled to any notice of proceedings for the child’s adoption and has no right to object to the adoption.  The legal relationships between the child and her parent, siblings and other relatives are severed by a final order of adoption.  Thereafter, the law does not recognize them as family, and considers them legal strangers.  That is, a terminated or surrendered parent is like a stranger to the child and can be excluded from contact by the adoptive parent just like any other stranger.  While “post-adoption contact agreements” are now recognized in Georgia, they are voluntary and an adoptive parent does not have to enter into one.

Additional pros and cons of surrendering rights versus having them terminated are outline in another post.

Modification of Custody

April 12, 2017

If you want to change a prior child custody order to increase or decrease the amount of parenting time you have with your children, or try to become the sole or primary physical custodian, you will need to file a court action called a “Petition for Modification of Custody”.  You may also seek to have a prior child support order modified through the same court action, in which case you would call it a “Petition to Modify Child Support and Custody” or something similar.  To try to get a court order changing custody in some way, you would have to prove that a “new and material change in circumstances” affects your child(ren).  The material change need not be for the worse and it can be a material change in you, your child(ren)’s other parent or your child(ren).  Some examples might include a child’s health condition, a parental health condition, changes in work or travel schedules, a relocation, a child’s academic needs, etc.  It can also be based on the custodial parent’s repeated denials of visitation with the noncustodial parent.

Once the court has determined that a material change of circumstances has occurred, it must consider whether modifying the prior custody award is in your child(ren)’s best interests, and will look to the “best interest factors” listed in O.C.G.A. §19-9-3(a)(3).  Child custody rulings are made by a trial court judge, not a jury.   Sometimes a guardian ad litem is appointed by the court or requested by one or both parties to conduct an investigation into the family and makes recommendations to the court to assist it in making custody and visitation rulings.  A guardian ad litem, or GAL, is an officer of the court (but often a private attorney) who represents the child’s best interests during the litigation.  GAL’s are discussed at more length in another post.