The Different Types of Parenting Time and Legal Decision Making (fka Custody) Options versus Terminating Parental Rights
If you are going through a legal battle regarding child Legal Decision Making (fka Custody), it is important to understand the different types of legal decision making options that are available versus terminating the other parent’s parental rights, and the consequences of terminating parental rights. Additionally, understanding how your parental rights affects the physical and Legal Decision Making (fka Custody) of your child can be a complex issue. The following is a guide to help you understand the different types of Legal Decision Making (fka Custody) options that may be available to you versus terminating the other parents parental rights all together.
This brief overview provides a snapshot of the different types of parental rights and Legal Decision Making (fka Custody) options available to a parent in the state of Arizona.
- Physical Legal Decision Making (fka Custody): The right of a parent to have a child live with him or her for a period of time.
- Legal Decision Making (fka Custody): The right of a parent to make decisions with respect to a child’s upbringing.
- Joint Legal Decision Making (fka Custody): Joint Legal Decision Making (fka Custody) may refer to either physical or legal Legal Decision Making (fka Custody) or both types of Legal Decision Making (fka Custody). Joint Legal Decision Making (fka Custody) is when both parents have rights and obligations regarding the child.
- Sole Legal Decision Making (fka Custody): Sole Legal Decision Making (fka Custody) is when one parent has physical Legal Decision Making (fka Custody), legal Legal Decision Making (fka Custody) or both physical and legal Legal Decision Making (fka Custody) of a child.
- Termination of Parental Rights: Any parent that has their parental rights terminated, either voluntarily or involuntarily, will have no rights or obligations with respect to their child.
Child’s Best Interest
Before describing all of the different types of Legal Decision Making (fka Custody) arrangements, or even the possibility of terminating parental rights, it is critical to understand the barometer by which the court will evaluate and determine child Legal Decision Making (fka Custody) and parental rights.
The most important factor that a court considers regarding deciding upon any type of Legal Decision Making (fka Custody) for a child rests upon a legal construct known as the “best interest of the child.” Courts will typically consider a child’s emotional and physical health and safety to be paramount in their decision-making process. Some factors that a court will consider regarding the determination of a child’s best interest include the following:
- How each parent facilitates and encourages the other parent to have a close and continuing relationship with the child, and behaves reasonably as well as honors the parenting schedule
- How each parent will care for the child individually after the litigation is resolved, and how much time will be spent with third parties instead of the actual parent
- The emotional and financial capacity of each parent to think and consider the needs of the child above their own desires
- The length of time the child has lived in a particularly stable environment, and the benefit of keeping them in that environment instead of changing the continuity of their schedule or where they feel the most comfortable
- The geographic locations of each parent and how that will affect a parenting plan, specifically with respect to school and activities
- The mental, physical, and emotional fitness of both parents
- The ability of each parent to provide a consistent routine for the child with respect to school, homework, activities, and bedtime
- The legal home, school, and community of the child on record
- Any evidence of domestic violence, sexual abuse, child abuse, abandonment, neglect, or any other kind of emotional or physical abuse towards either the child, other children or the parent
- Any evidence of false information provided by either parent
- The ability for each parent to protect the child by not discussing the ongoing litigation, child Legal Decision Making (fka Custody), or child support matters with the child, as well as the ability to refrain from negative comments about the other parent in front of the child
- The preference of the child under certain circumstances
All of these factors will be taken into consideration by a court to make a determination regarding what is in the best interest of the child.
Physical Legal Decision Making (fka Custody)
Physical Legal Decision Making (fka Custody) describes when a parent has a child live with him or her for a period of time. Most states in most cases will award joint physical Legal Decision Making (fka Custody), which means that both parents will have a set time that they are allowed to spend with the child. These cases work best when parents live close to each other and can keep a child on a routine schedule. This ensures that the child will benefit from the emotional connection with both parents on a consistent basis. In some joint physical Legal Decision Making (fka Custody) cases, one parent will have more overnights with the child than the other parent. Oftentimes, this may be a logistical issue regarding where the child goes to school or the age of a child.
The determination of child support will rest upon which parent has more time with the child and therefore is spending more money to raise that child. The parent with whom the child primarily lives is called the “custodial” parent. However, even if there is one “custodial” parent, both parents are considered to have joint physical Legal Decision Making (fka Custody) of the child, and the other parent will have full rights to visitation or parenting time with the child.
If a parent is awarded sole physical Legal Decision Making (fka Custody), then one parent will be considered the primary caretaker of the child, and all overnights will be at that parent’s home. Parents can still possibly share joint legal Legal Decision Making (fka Custody) if one parent has sole physical Legal Decision Making (fka Custody). This would mean that both parents would have decision-making authority with respect to a child’s upbringing, but one parent would be the primary caretaker with the other parent having visitation rights according to a legally binding parenting schedule or agreement. It is important to note that sole physical Legal Decision Making (fka Custody) does not terminate the legal rights of the other parent at all, and simply grants primary physical Legal Decision Making (fka Custody) to one parent.
Legal Decision Making (fka Custody)
Legal Decision Making (fka Custody) describes the ability of a parent to make decisions regarding the upbringing of a child. Typically, these decisions involve a child’s schooling, religious upbringing, medical care, or other significant life choices. As with physical Legal Decision Making (fka Custody), most courts want to allow both parents to have joint Legal Decision Making (fka Custody) of a child, as it is typically in the best interest of the child to have both parents make determinations about his or her upbringing.
If you are awarded joint Legal Decision Making (fka Custody) and begin to make significant life decisions regarding your child without consulting the other parent, the other child’s parent has the right to take you back to court to attempt to ask the judge to enforce the Legal Decision Making (fka Custody) order.
In some cases, the courts will award one parent sole Legal Decision Making (fka Custody) due to the fact that one parent may not communicate with the other, or the other parent has a pattern of abuse. In these cases, the court may determine that it is in the best interest of the child that only one parent makes decisions regarding the upbringing of the child to avoid conflict or potentially dangerous situations.
Termination of Parental Rights
There are two types of termination of parental rights — voluntary termination and involuntary termination. In both circumstances, this legal step means that a parent will never be able to see their children again and that all rights and decision-making authority will be completely and permanently terminated.
Voluntary Termination of Parental Rights
The most common instance of voluntary termination of parental rights occurs when a parent wants to give a child up for adoption. Another common instance of voluntary termination occurs when a stepparent adopts a child, and the parent allows them to do so, thus terminating their parental rights with respect to the child. However, even when a parent wants to terminate their parental rights, courts typically hold to the idea that a child is the responsibility of the biological parents both emotionally and financially. Unless there are significant circumstances that warrant a step-parent legally adopting a child and the biological parent terminating their parental rights, a court will typically persist in their goal of ensuring that a biological parent maintains responsibility for the child.
It is important to note that in some instances even if a parent wants to terminate parental rights in exchange for not being involved in a child’s life, a court may deny the request. Courts typically want to ensure that both parents are financially responsible for their children and take that obligation seriously. The state of Arizona requires parents to continue to pay child support even if they do not see their children or make any decisions with respect to their children. Ultimately, the decision to voluntarily terminate parental rights is one that most parents and the state of Arizona do not take lightly.
Involuntary Termination of Parental Rights
Most courts will attempt to ensure that each parent has a right to see their child and develop a meaningful relationship with the child. The courts typically determine that the best interest of the child is to have contact with both parents. Most courts will ensure that each parent is responsible for a child’s emotional and financial well-being.
However, there are circumstances under which the court will involuntarily terminate all rights of a parent with respect to their children. These situations are typically quite severe and the court will not make this decision without careful consideration. Involuntary termination of parental rights rests upon a court determining that a parent is either unfit or that it is in the best interest of the child to terminate parental rights. Some of the most common reasons include the following:
- Severe abuse or neglect of the child by the parent
- Sexual abuse
- Abuse or neglect of other children by the parent
- Long-term or severe mental illness or deficiency of the parent
- Long-term incapacitation of the parent due to alcohol or drug abuse
- Failure to continually contact or support the child
- Involuntary termination of the parent’s rights with respect to another child
Additionally, there are some circumstances under which a parent convicted of a felony will have parental rights terminated. Typically, these situations will involve a felony that is a crime of violence against a child or other family member. In other cases, if a parent is required to be imprisoned for a substantial period of time, the child may have to enter foster care due to no other viable or safe options. The courts rarely terminate the rights of a parent involuntarily, and there have to be egregious circumstances for this to happen.
Reinstatement of Parental Rights
In most cases, a parent who has had parental rights terminated with respect to a child will never have those rights reinstated. However, there may be a unique and special circumstance in which the child was placed in a foster home, and the parent petitions the court and proves that they now can provide a safe home for the child and can care for the child both emotionally and financially.
Sole Legal Decision Making (fka Custody) vs. Termination of Parental Rights
Sole Legal Decision Making (fka Custody) gives one parent complete physical and legal rights to a child. If one parent has sole Legal Decision Making (fka Custody) for both physical and legal purposes, that parent will be the child’s “custodial” parent permanently, and also be able to make all discretionary life decisions for a child regarding their upbringing without having to consult the other parent. However, even in cases in which a court will grant sole Legal Decision Making (fka Custody) to a parent, the other parent of the child could have parenting time with respect to the child or no parenting time could be ordered. Although no parenting time could be ordered that is not the same thing as terminating the other parent’s parental rights. In these cases, the parent without Legal Decision Making (fka Custody) will be allowed parenting time with their child to maintain an emotional bond and connection between the parent and child. Additionally, the parent without physical or legal Legal Decision Making (fka Custody) will still be required under the law to pay child support for the child and support the child financially.
When parental rights are terminated with respect to a child, the parent without rights is considered by law to be a stranger to that child. Whether voluntary or involuntary, when parental rights are terminated, that parent has no legal right to ever see or communicate with the child again, or have any right to make any decisions regarding the upbringing of the child. In these extreme cases in which parental rights are terminated, the parent may not be required to pay any child support with respect to the child, and this decision will be made the court.
Parental Rights and Legal Decision Making (fka Custody) Options
The legal landscape regarding parental rights and Legal Decision Making (fka Custody) options can be confusing and many factors can determine how a court will ultimately decide the best interest of the child, and how much time, or even if, a parent has the right to physical or Legal Decision Making (fka Custody) of the child. Understanding these different options can help you determine whether to terminate parental rights or request sole legal decision making and how best to proceed regarding your unique situation.