What happens to your child if you die and their other parent is absent from their life or not even paying support?
The absent parent will have complete rights to the child regardless of whether or not he/she has seen or supported the child in years. Even if there are custody, placement and/or visitation orders in place while you are alive, they do not prevent the absent parent from taking possession of the child after you are gone. You can’t even change that by leaving instructions in your will. But, you do have some options.
In Rhode Island, a parent may terminate the parental rights of the other parent under very specific circumstances. In most cases, when parents cannot co-parent, one or both will seek sole custody of the child or children, but the other parent remains entitled to visitation and remains obligated to pay child support. Sometimes, that is the best that the parent with placement can do.
However, if the absent parent fails to visit or support their child, the parent with placement may petition the court to terminate the absent parent’s parental rights, if a new spouse or one of the child’s grandparents will adopt the child in the terminated parent’s place. For example, a mother may terminate the parental rights of an absent father if her new husband, or one of the child’s grandparents, will adopt the child. However, the child must be living with the parent AND the new husband or grandparent at the time the petition is filed. Usually, a Family Court investigation is conducted to determine if the adoption is appropriate and the necessary guidelines are met and the Court will generally follow the investigator’s recommendation. If the absent parent objects to the termination, there will be a hearing to determine whether the termination is lawful and appropriate. In doing so, the Court shall follow the guidelines set out in Rhode Island General Law 15-7-7, as stated below.
“The court shall * * * terminate any and all legal rights of [a] parent to [a] child * * * if the court finds as a fact by clear and convincing evidence that: * * * (1) The parent has willfully neglected to provide proper care and maintenance for the child for a period of at least one year where financially able to do so. In determining whether the parent has willfully neglected to provide proper care and maintenance for the child, the court may disregard contributions to support which are of an infrequent and insubstantial nature. * * * (4) The parent has abandoned or deserted the child. A lack of communication or contact with the child for at least a six (6) month period shall constitute prima facie evidence of abandonment or desertion.” RIGL § 15–7–7(a)(4).
Attorney Carl P. DeLuca pioneered the grandparent termination and adoption in the early 2000’s, and the seminal case of “In Re: Abby D,” was decided in his client’s favor in 2005 after the terminated parent appealed to the Rhode Island Supreme Court. In that case, the Rhode Island Supreme Court said, “… it has no tolerance for a parent “who makes halfhearted or no attempts to visit or contact his or her child within the six-month statutory time period * * *.”
There is no way for a parent to terminate the parental rights of another parent without a coinciding adoption. The Department of Children, Youth and Families may petition for termination without adoption, but a parent cannot.
For more information regarding how you can successfully petition for a Termination and Adoption, contact us right away!
401 732-4420 (Call)
401 384-0355 (Text)