Private Termination of Parental Rights

There are several situations in which a parent or caregiver may wish to terminate the legal parental rights between a parent and child. This proceeding is called a private termination of parental rights (“TPR”) and may be initiated by a parent, guardian, caregiver of at least two years, or someone who has filed a petition to adopt.  The person who files the proceeding is called the “petitioner” and the parent whose rights are sought to be terminated is called the “respondent.”  The most common grounds for a private TPR include the respondent’s abuse or neglect, failure to provide financial support or consistent care, failure to legitimate a child, inability to provide for proper care and supervision of child and willful abandonment, although there are some other grounds.

After a petition for a TPR is filed, the court is supposed to hear the matter within 90 days.  A special summons is used to serve the petition on the respondent.  If the respondent is indigent, the court will appoint the respondent counsel.  Also, if the respondent is incompetent or a minor, a Guardian Ad Litem should be appointed to him or her.  A Guardian Ad Litem is likewise appointed to the child if the respondent denies any material allegation in the petition (unless the child already has a Guardian Ad Litem).

A TPR hearing is actually two hearings, often held back to back:  (1) the adjudicatory hearing in which the court determines whether the grounds for termination are supported by clear, cogent and convincing evidence; and (2) the disposition hearing in which the court determines whether terminating the rights of the parent is in the best interests of the child.  In determining the best interests of the child the court looks at the child’s age, the likelihood of adoption, the bond between the child and the parent, the quality of the relationship between the child and any proposed adoptive parent or other permanent caregiver and any other relevant consideration.  The court also takes into consideration the testimony of the Guardian Ad Litem.

Courts are usually cautious in terminating parental rights because severing them extinguishes all of the rights and responsibilities of parenthood.  This means that the respondent no longer has custody or visitation rights, and has no say in decisions made in the child’s life.  A TPR also ends the respondent’s financial obligation to support the child.

North Carolina’s statute that governs TPR proceedings may be found at http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_7B/Article_11.html.  If you are considering a private TPR, or if one has been filed against you, it is best to consult with a qualified family law attorney.


 Susan L. Evans is a civil law litigator practicing state and federal law in Asheville, North Carolina, and surrounding areas. She has experience in employment, civil rights, business, contract, tort, consumer, real estate, construction and family law litigation.  Her practice also includes appellate work.  For more information, visit http://www.evanslaw-asheville.com/.

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I don’t see my child, so why do I have to pay child support?

This has to be the number one question I get in child support enforcement court.  “I haven’t even seen this child in years, she didn’t tell me she was pregnant! Why do I have to pay support for years when I didn’t even know she existed?”

I can see why this doesn’t make sense.  How can you owe a debt based on a child that you didn’t even know existed?

Well, legally, you can.  As I often say, you might not agree with it, you might not think it’s right, but it is still the law.

First, a parent has the legal duty to financially support his or her child.  This is the starting point for every child support case.

Second, our courts have looked at the question of whether this financial support hinges upon whether you get visitation or custody.  The answer? No. Check out  Appert v. Appert, 80 N.C.App. 27, 341 S.E.2d 342 (1986); Sowers v. Toliver, 150 N.C.App. 114, 562 S.E.2d 593 (2002).

Now you have found out you have this child, let’s say she is five years old, and the child support enforcement agent is telling you that you owe thousands of dollars in arrears – back child support.  This is the second most common area of confusion for my clients.

You owe child support back from when the child was born!  Why? Because our legislature said so, that’s why.  If the monies are owed only to the custodial parent, that custodial parent can agree to have the arrearages (back child support) modified.

Sometimes the monies owed are actually owed to the government.  This is because if your child received any sort of government assistance, that creates a debt that you must repay to the state.  Generally, these arrearages are not modifiable, although there are limited exceptions.

Keep in mind these are general rules.  There are exceptions.  Child support amounts must be based upon the parent’s ability to pay, and if the amount is not reasonable, you might not be liable for nonpayment of child support.  If you are behind in your child support, you might be able to modify your obligation or add additional payments to make up for your arrears.  And if you are facing contempt charges for failure to pay child support, hire an attorney to keep you out of jail!

 

Blog post author Sarah Jessica Farber is a solo practitioner in Sanford, North Carolina, with a statewide criminal defense practice in criminal trials, appeals, and post-conviction litigation in our state and federal courts.  She was named a Rising Star by Super Lawyers in 2016, serves on the Executive Committee of the North Carolina Advocates for Justice, and also serves as Chair of the NCAJ New Lawyers Division.  For more on the Farber Law Firm, visit  http://sjfarberlaw.com/.

3 Common Questions in a Family Law Initial Consultation

The first step in hiring an attorney to represent you in a family law case is usually accomplished by an initial consultation. The purpose of the initial consultation is to get information about whether you need an attorney and to see if you like the attorney and can work well with the attorney. Your attorney will be someone you need to work with closely during your case, so you need to be sure you can get along with the attorney.

In a family law case, there are potentially five issues that need to be addressed at the initial consultation: divorce, child custody, child support, spousal support and equitable distribution. Under North Carolina law, a divorce is only available after you have been separated from your spouse for one year. The other issues may or may not be applicable to your case. For example, if you do not have children, there is no need to discuss custody or child support.

Aside from meeting the attorney (and the attorney meeting you), the purpose of the initial consultation is to determine what type of representation you need. The attorney will generally ask questions about the facts of your case, then discuss the how the law applies to your facts, and finally go over the options you have in moving forward. Since every family’s set of facts is different, the approach taken in a particular case needs to fit those facts. If you and your spouse already have a verbal agreement, you may only need the attorney to draft your settlement documents. On the other hand, if you and your spouse cannot even have a discussion, the attorney will need to be heavily involved.

Aside from the legal issues to be discussed at the initial consultation, there are three questions which are commonly asked:

  1.  How much will this cost? This is a very difficult question to answer. The cost of a family law case depends on many factors. One factor is how many issues need to be dealt with. Another factor is whether you and your spouse can talk to each other and work out any issues in a settlement. If every issue will result in a dispute and having to go to court, the cost will be much higher. Also, if the issues involved in your case are complicated, such as a large marital estate to be divided, the cost could be higher.
  1. How long will this take? This question is very similar to the question about cost. If every issue in your case will be disputed and you will have to have a full-blown trial, the length of time is likely to be much longer. If you and your spouse agree to be reasonable and discuss the issues or go to mediation, the issues could be resolved fairly quickly.
  1. Will I have to go to court? It depends. Are there issues involving potential danger to your children or is your spouse selling property or draining money? If so, then you may need to go to court immediately to get in front of a judge. Generally, the best result is one where you and your spouse can work things out in a settlement. This could be accomplished by going to mediation or negotiations through your attorney. While going to court is usually the last result, sometimes it is a necessary step.

One tip: write out all of your questions ahead of time and bring the list with you. It is perfectly natural to be nervous when going into the consultation. However, the initial consultation in a family law case is a necessary first step towards getting your issues resolved.

Myers Law Firm, PLLC is based in Charlotte, NC and represents clients in the areas of family law, personal injury and civil litigation.  Contact us today to see how we can help you at www.myerslegal.com, 704-376-3000 or mattmyers@myerslegal.com.