Termination of Parental Rights and Adoption

Termination of Parental Rights and Adoption

Q. I am trying to find out if I have to involve the biological father in the last-name change and joint custody or some type of legal rights to my fiancé of my 5 year old daughter. The biological father is not on the birth certificate but did sign an acknowledgment 5 years ago at the local des building. His background and criminal history prevents him from having custody of any child. He is currently incarcerated in NY State for assault.

A. Great question. If the biological father signed an acknowledgement of paternity and six (6) months have elapsed, he is the legal biological father for the child regardless of whether or not he actually is the biological father. That means that for child support purposes it does not matter if he takes a paternity test and is not the child’s actual father. The only thing that matters is that he is the child’s legal father. Based upon what you have stated you would like your fiancé to be a part of the child’s life which is very commendable. In order for this to happen you would need to sever/terminate the biological father’s rights. As long as those rights are intact, your fiancé cannot have a legal right to the child. Based on the information provided you would likely be successful in that termination action. Terminations are difficult but the Court can sever a parent’s rights if certain circumstances exist and the Court determines that it is in the child’s best interest for his/her biological parent’s rights to be terminated. Arizona Revised Statute 8-533 discusses who can file and under what grounds:

8-533. Petition; who may file; grounds

  1. Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, a foster parent, a physician, the department or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship alleging grounds contained in subsection B of this section.
  2. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child:
  3. That the parent has abandoned the child.
  4. That the parent has neglected or willfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child.
  5. That the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
  6. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child, including murder of another child of the parent, manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.

(There is more to this statute that was not included due to space) For more information please visit:

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/8/00533.htm&Title=8&DocType=ARS

You have indicated that the biological father is incarcerated in New York for assault. You have also indicated that he cannot have custodial rights to any children. While your question does not indicate why he cannot have custodial rights, the fact that the biological father’s sentence is of such a length that the child will be deprived of a normal home for a period of years satisfies the statutory requirement and would allow you to petition to the Court for termination of biological father’s rights.

Absent DadQ. Okay, so what happens when the rights are terminated?

A. Once the rights are terminated your fiancé can seek to adopt the child through the juvenile court. One of the questions the Court will likely ask during your termination hearing is if you are married for at least a year prior to the adoption taking place. While it is not required that you be married, it does provide the court assurance that the child is not being put into a worse predicament if the Court severs the parent’s rights. Severance of a parent’s rights does not terminate his/her obligation to support the child. This obligation will continue unless your fiancé adopts the child. Once the adoption takes place all current support would end. This would not result in forfeiture of any past due support (Arrears). So if your ex owes a lot of back support he cannot get out of it simply because your fiancé adopts the child. If you do want to sever the biological parent’s rights, it is better to do it while the individual is incarcerated.

Oftentimes parties will contact an attorney just before the other party is released from jail/prison and wants to sever that party’s rights because the custodial parent is concerned that the other parent will “come after the child’ upon release. By that point it is normally too late to sever unless your situation meets one of the other A.R.S. 8-533 grounds for termination. So it is advisable to do so at the beginning of the sentence or at least where there is time still left on the sentence. This is when the argument is strongest and is generally the most advantageous time to file. If you are serious you should consider filing as soon as possible. If you are planning on getting married during the process, just keep in mind that the Court will generally want to see that you have been married for a year prior to seeking adoption. Luckily a second parent is not necessary for the termination action to commence. That simply means that you can terminate prior to getting married and simply wait to start the adoption process. Guardianship is not applicable based on your circumstances and the information provided.

As always, I think it would be beneficial for you to speak to an attorney regarding this issue. Good luck with your situation.