Monday, February 09, 2009

terminations and adoptions in Texas part 1

I would like to post a bit on terminations and adoptions. I get tons of questions and emails regarding terminating a parents parental rights or a step parent wanting to adopt a step-child. I am going to give a very brief procedural layout for how this works in an attempt to answer some of these questions. In part 2 of my post I will discuss some of the hoops that must be jumped through to accomplish a termination and adoption.

Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).

A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.

The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.

Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.

The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.

In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.

With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.

In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.

Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.

One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.

This concludes Part 1. See you in Part 2!

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

8 comments:

Anonymous said...

Chris, love the blog read it often, i have an off the subject question if you want to adjust custody to week on week off how should you handle holiday visitaion? trying to do it myself and not so sure any advice would help....thanks heather

Chris Schmiedeke said...

Heather, those are tough. What I typically do is to use the standard visitation holidays as they are pretty well set out.

The holidays would supersede the week long visitation, so if it was your week, but the holiday began mid-week and belonged to the ex, then that would take precedent over your week and you would basically lose that remaining time.

To keep thing organized, you would need to continue to accrue the weeks on the same schedule even during the holidays.

What happens with the week on week off during the holidays is that people get confused when the holidays end on whose week it is. Just continue the week on week off schedule through the holidays even if you are not getting the child because of the holiday.

Follow me?

This is just one idea. There are a million other variations you can use.

Good luck.

Natalie Gregg, J.D. said...

Chris,

I enjoy the blog! I've actually started a similar one on my site, and would appreciate your feedback.

http://txfamilylaw.blogspot.com/

Hope all is well!

Natalie Gregg
The Law Office of Natalie Gregg
www.NatalieGregg.com

Kraig said...

Chris,
my son is now 4 months old and his father has seen him once since his birth. His father abandoned me during my pregnancy and has not made an attempt to see him other then the one time. He also has not supported my son. I have over $2,000 in medical bills from my pregnancy and have paid over $2,000 myself. I do not want his money I just want to make sure he leaves my son alone. He has been on and off of drugs for the past 2 years and cannot keep a job. How can make sure that he stays away? Can I terminate his rights? I read the family code Chapter 161, Section 161.001(H) and would like to make sure this is grounds for termination? I just want to protect my son, please help.

Lorrie said...

Hi Chris, we filed suit in Bell County,Tx and we as grandparents were appointed Joint Managing Conservators. We had visitation rights; every wed, last weekend of the month etc. standard visitation. We also had to agree to add our 6 yr old grandson to our medical insurance since my step daughter and her husband could not afford it. We have since moved to Tarrant County to be closer to our grandson and my daughter who goes to TCU. Last wed I went to go pick up my grandson and the parents house was completely cleaned out and a sign in the living room propped against the wall which read "moved to Germany". The father was formerly active duty, served in Iraq and is now receiving 100% disa through the VA. Another neighbor thought that they may have moved to Mexico. Or they may be in their old hometown of San Antonio. I am waiting for my wife to return, she resigned her job as a civilian contractor in Iraq. Since we changed residences we are going to have to get a new atty, I'm just waiting on my wife. My question Chris is can we get custody. The father has always threatened to move where we would never find them and he and his family are from Mexico. How can induce them to follow the final order giving us grandparent rights and joint managing conservatorship?

Lorrie said...

Hi Chris, we filed suit in Bell County,Tx and we as grandparents were appointed Joint Managing Conservators. We had visitation rights; every wed, last weekend of the month etc. standard visitation. We also had to agree to add our 6 yr old grandson to our medical insurance since my step daughter and her husband could not afford it. We have since moved to Tarrant County to be closer to our grandson and my daughter who goes to TCU. Last wed I went to go pick up my grandson and the parents house was completely cleaned out and a sign in the living room propped against the wall which read "moved to Germany". The father was formerly active duty, served in Iraq and is now receiving 100% disa through the VA. Another neighbor thought that they may have moved to Mexico. Or they may be in their old hometown of San Antonio. I am waiting for my wife to return, she resigned her job as a civilian contractor in Iraq. Since we changed residences we are going to have to get a new atty, I'm just waiting on my wife. My question Chris is can we get custody. The father has always threatened to move where we would never find them and he and his family are from Mexico. How can induce them to follow the final order giving us grandparent rights and joint managing conservatorship?

Anonymous said...

I have a couple of questions. I have a daughter that is now 4 and a half. When I got pregnant her biological father went to prison. I got back with my sons father and got married 3 months after she was born. My husband was there through the whole pregnancy and birth. He signed they AOP and BC. Then when the bio dad got out of prison he wanted a DNA test so I agreed. We got the results back after I was married and he was proven to be her biological father. We never went to court as the OAG said he needed to obtain a personal lawyer. I took her to see him about 10 times. Once when she was 2. Ever since then he hasnt seen her nor tried to give any money to since he found out she was his. He didnt ever get a lawyer until this last Feb. Were he now is trying to get rights. My husband has rights to her because he signed the AOP and BC and declined a DNA test. Plus we got married. The bio father has a criminal record of Fleeing, Drug charges and felony for injury to a minor. I gave him a chance to prove himself and that he had changed but all he did was show that he is still a violent person and using drugs. I filed a counter suit to terminate his rights. What do you think my chances would be to do that?

Thank you!!

Anonymous said...

Chris,

My boyfriend has been paying child support for 12 years. He has never been able to see the child. He only saw the child shortly after he was born. After that the mother took the child and he has not been able to locate the child to visit. Can you tell me if this is a case where we can terminate parental rights?