Termination of Parental Rights

You have the right in most divorce cases to receive either physical or legal custody of your child, or both. There are some circumstances under which a court in North Carolina may determine that it is in the best interests of the child to terminate parental rights. Learning more about the types of parental rights that are awarded in a divorce case and how those parental rights may be terminated can help you ensure your legal rights are protected.

In most cases, parents going through a divorce in North Carolina will be allowed to have both physical and legal custody of their child. Physical custody is the determination of when the child is to be physically with the parent, even overnight. Legal custody refers to the right of a parent to make legally binding decisions regarding medical issues, a child’s education, or religious upbringing. In most divorce cases, a court will determine that both parents should be awarded custody, both physical and legal, but there are some circumstances under which only one parent is afforded sole custody of the child. In rare cases, the court may terminate one parent’s right to the child completely. However, the termination of a parental rights is a separate proceeding from a divorce action.

Courts will always look to what is in the “best interest of the child” in the state of North Carolina to determine whether to issue joint custody, sole custody, or to terminate a parent’s rights to their child.

Under egregious circumstances, a court will terminate a parent’s rights to their child. This decision is not made lightly and rests upon whether the North Carolina court determines that a parent was unfit or abused the child. For example, if a court discovers that there was any physical or sexual abuse of the child by the parent, neglect of the child by the parent, abandonment of the child, a long-term or severe mental illness of the parent, a long-term incapacitation of the parent due to abuse of alcohol or drugs, a failure of the parent to contact or support the child continually, or that the parent has already had an involuntary termination of their rights with respect to another child, they may also involuntarily terminate the parent’s rights to the child involved in the current divorce.

In other cases, if one parent is convicted of a felony that involved violence against a child or family member, that parent may also have parental rights terminated. Typically, if a parent has their rights to a child terminated, they will likely never have those rights reinstated except for under unique or unusual circumstances. Again, in most circumstances, a court will never terminate the rights of a parent with respect to their child except for egregious and violent behavior exhibited by the parent toward the child.

It is important to point out that in some cases, a parent is given either sole physical or legal custody to their child. Even if a parent receives sole physical and legal custody of the child, it does not in any way terminate the rights of the other parent with respect to the child. In these cases, the parent who has sole custody is considered to be the child’s “custodial” parent. The other parent will still have visitation rights that will need to be coordinated, and they will be legally allowed to see their child under the law. Even if one parent is awarded primary physical custody, the other parent will still maintain visitation rights with respect to the child to ensure that the emotional bond remains between them. The non-custodial parent will also likely be required to pay child support to the custodial parent, as the court typically wants to ensure that both parents are providing for their child financially.

If you are considering a divorce, you may be overwhelmed by the legal landscape involving custody rights and child support issues. In most cases, parents do not have their parental rights to their child terminated. However, it is important to ensure that your parental rights are protected with respect to your child. If you are interested in what type of physical or legal custody you may be able to obtain with respect to your child following your divorce in the greater Charlotte area of North Carolina, contact an experienced divorce attorney at Arnold & Smith, PLLC at 704.370.2828 or online today to schedule your consultation.