Termination of the parent child relationship
A question that I frequently receive at my Round Rock Law Office concerns terminating the parental rights of the other parent that is not involved in the child’s life. Chapter 161 of the Texas Family Code deals with this situation. Generally this situation in relation to a divorce or child custody case where the parent that is primarily caring for the child starts to consider attempting to terminate the rights of a non-involved parent. Sometimes this question arises out of a genuine concern about the child’s physical health and emotional development and other times it is made from a position of selfishness.
Selfishness is a real concern for everyone involved in the family law system. The number one concern of everyone involved with the family courts including the attorneys, judges, and party’s is the best interest of the child. I think this term gets thrown around a lot, but rarely do people really stop to consider what is in the best interest of the child. Not Clifford Alan Swayze’s best interest, not his client’s best interest, but the child’s best interest. I think as a lawyer in a child custody case every conversation with your client should start with what do you think will be best for your child?
The honest answer to that question generally should be that both parents are actively engaged in the life of the child and that the child receives love and attention from both parents. Studies have shown that children raised within family household that is intact meaning has not gone through a divorce suffer the least amount of stress. Studies have also shown that children that live with both parents have a significantly reduced amount of stress from those with only access to one parent.
I understand that it is difficult to understand, but the rule is that children with a good relationship with both parents has fewer emotional developmental issues than children missing out on a relationship with one of their parents.
As stated above Chapter 161 of the Texas Family Code sets forth the grounds for terminating the parental rights of a parent. Amongst other reasons the code states that the court may order the termination of the parent child relationship if the court finds by clear and convincing evidence. Let me stop to analyze this sentence before we move on to the factors. The code specifically uses the word “may.” This term is used to indicate that something is a possibility. It not a term that implies the court actually has to do this if this factor is present. I think the term implies that the court has a choice to terminate if these factors are present.
The last part of the states that the court finds by clear and convincing evidence. This is a high level of certainty. If you take this into context with other levels of certainty the term can be understood with more clarity. For instance, the lowest level of certainty is reasonable suspicion. This is the level of certainty that an officer needs to pull you over for a traffic violation. The second level of certainty used in the legal system by lawyers is probable cause. An officer is required to have probable cause before he can place someone under arrest. This means that the police officer needs to be able to be able to reasonably articulate facts for why he arrested an individual. The next level of certainty is when some sort of civil suit is initiated such as a divorce, child custody case, suit affecting parent child relationship or suit to adjudicate parentage. The level of certainty required in this type of case is preponderance of the evidence standard. What this means is that the trier of fact needs to believe by 51% that the situation occurred that it is more likely than not. Two levels of certainty are higher than preponderance of the evidence. Clear and convincing evidence and beyond a reasonable doubt.
How certain would you want the court to be if someone was trying to terminate your parental rights or take your child away from you? On the other hand consider the health, safety, and well being of the child. How many children die a year due to abuse and negligence of the parents? This is a lot of information to consider. The stakes are generally high when a person is wanting to terminate a parent’s right to his or her children.
There is no doubt that a lawsuit of this nature will be a highly expensive venture. Judges are thoughtful when the possibility of termination a parents rights is before the court. When I use the term thoughtful I mean the decision will weigh heavily on the mind of the judge and the judge will be extremely cautious in making a decision. A termination is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child’s right to inherit. Consequently, termination proceedings are strictly scrutinized and involuntary termination statutes are strictly construed in favor of the parent. It has been held by the Texas courts that “Actions which break the ties between a parent and child can never be justified without the most solid and substantial reasons.
For these reasons enumerated above the Texas Family code used the language “may,” when describing the courts authority to terminate the parent child relationship. This word gave the court authority to consider what is in the best interest of the child. Not only does the court have to prove that one or more of the factors laid out in chapter 161 is present, but also that the termination of the parent child relationship is in the best interest of the child. The court or jury must find that both elements are established by clear and convincing evidence. Proving one element does is not enough to terminate the parent child relationship.
When a client comes into my office and says “Clifford Alan Swayze do you believe that I have chance at terminating the parent child relationship as to my child’s other parent,” I simply ask what do you think is in your child’s best interest and what are your reasons for considering this option. Do not attempt to prosecute or defend a termination law suit without the assistance of a good child custody lawyer.