Termination of parental rights is one of the most misunderstood aspects of family law, in Wisconsin. In reality, these actions are rare, and the law allowing for termination of parental rights is restrictive and specific, as to fact scenarios that may lead to such an action being successful. This blog entry is meant to address termination generally, as well as common questions regarding termination of parental rights in Wisconsin, and the circumstances under which a termination of parental rights action may be warranted.
The US Supreme Court’s decision in Troxel v. Granville states that every parent has a fundamental right to the care, custody and control of her or his offspring. This means that parents, by default, have a Constitutional right to parent their children. Termination of parental rights effectively destroys that right, and with it, a child’s legal relationship with a biological parent. Should an action for termination be successful, the parent whose rights are terminated will thereafter be a legal stranger to the child, like a random person on the street. When rights are terminated, so too is the child’s ability to inherit anything by default from the terminated parent. The child’s right to affiliate with extended family members is similarly nullified when the chain connecting the child to that family is severed. As such, termination of someone’s parental rights is a very serious matter with profound ramifications, for both the biological parent whose rights are terminated and for the child.
One of the threshold questions in any proposed termination of parental rights action, in Wisconsin, is whether there is a fit step-parent who is willing to adopt the child, should the termination be granted. The State of Wisconsin believes that it is generally better for children to grow up with two parents, rather than with only one. Even if one of the two biological parents is deficient in some way, the state will be very reluctant to terminate rights, unless a step-parent is waiting in the wings, to take the terminated parent’s place. As such, for a termination to be successful, the terminated parent must be found unfit (a very high standard) and a step-parent must be willing to adopt the child, to step into the terminated parent’s role. Similarly, a parent may not voluntarily terminate her or his own rights, unless a step-parent is willing to adopt.
Many people ask whether it is possible to terminate the parental rights of a parent who stops paying child support. It can be frustrating and scary when a paying parent refuses to pay or stops paying, altogether. Generally, however, the answer to this question is no. A person’s failure to pay support is not dispositive, with respect to unfitness. There are many mechanisms in place, short of terminating a payer’s rights, to ensure that a child is supported per order. A contempt motion, for example, can result in the imposition of various remedial sanctions on a non-paying parent obligated to provide financial support, up to and including jail time. Not paying child support is not adequate grounds, in and of itself, to terminate parental rights. It may be used as one factor of many in an argument that the terminated parent failed to assume parental responsibility for a child, but it is not enough, by itself, to warrant termination.
Another common question is whether it is possible to terminate the parental rights of a biological parent who has not seen the child for a substantial period of time. This answer is more complex, amounting to, “It depends.” By statute, there are various circumstances in which a parent who has gone without seeing the child for a time could be considered abandonment, and therefore grounds for termination. For example, if the parent knows where the child is but has failed to visit with or communicate with the child for a period of at least 6 months or more, the grounds to terminate may have been met, absent a good reason for why the parent may have failed to do so. However, every case is different, and the unique facts of the case will be incredibly important in an assessment of the likelihood of success. Keep in mind, even if abandonment grounds are met, a fit step-parent will need to concurrently adopt the child.
Other grounds for termination of parental rights include abuse, incest and homicide or attempted homicide of the other parent, as well as unfitness that rises to the level of grounds for termination (such as drug dependency, severe mental health issues or criminal convictions). Many times, petitions to terminate rights per these grounds will be brought by Child Protective Services, rather than by one parent. All of these grounds have statutory guidelines that must be applied to each unique case.
Even if the above grounds are met, the Judge will still need to determine that termination of the biological parent’s rights is in the child’s best interests.
Termination of parental rights cases are complex and involve nuanced legal argument and analysis. As such, they tend to be lengthy and costly. Even so, in some situations, it truly is best for a child to terminate a biological parent’s legal rights and to facilitate the child’s adoption by a loving step-parent. We have handled termination of parental rights cases and would be happy to speak with you about the unique facts and circumstances of your case. Feel free to call our office, to set up a free initial consultation.