If I terminate my parental rights, what am I actually terminating?
Full Question:
I am the father to 3 children and I have gone to court twice since divorcing thier mother. I have had to fight to see my children and now they are being placed in the middle of a constant visitation battle. They (the children) are now forced to contact me by their mother, when their mother has been denied changes to my visitation weekend, and say they no longer want to come for a visit. Also, at the last visitation exchange, their mother physically forced one child to my car and screamed at her for not walking up to me. This is just a small sample of the outrageous behavior my former wife exhibits. I feel it is detrimental to the welfare of the children and I would like to know how I can give up my parental rights. I'm just exploring the idea at this point and in no way do I want to never see my children but watching them being forced to a vehicle was over the top and in not in their best interest to witness either parent's issues. I'm almost at the end of my patience and have wondered recently what would happen if I gave up my parental rights so that the kids could live somewhat peacefully with their mother. I guess I need to know, in the state of Idaho, what I am actually giving up. My rights? my child support etc? What about my family and would they be allowed to see the children at family functions? Would I be able to see them at family gatherings and not be in contempt somehow? I feel this is an extreme last resort situation yet I just don't know what else to do.
11/05/2007 |
Category: Paternity ยป Termination ... |
State: Idaho |
#11674
Answer:
The following are Idaho statutes:
16-2001. Purpose. —
(1) The purpose of this chapter is to:
(a) Provide for voluntary and involuntary severance of the parent and
child relationship and for substitution of parental care and supervision
by judicial process, thereby safeguarding the rights and interests of all
parties concerned and promoting their welfare and that of the state of
Idaho; and
(b) Provide permanency for children who are under the jurisdiction of the
court through the child protective act, chapter 16, title 16, Idaho Code,
where the court has found the existence of aggravated circumstances or
that reasonable efforts to return the child to his or her home have
failed.
(2) Implicit in this chapter is the philosophy that wherever possible
family life should be strengthened and preserved and that the issue of
severing the parent and child relationship is of such vital importance as
to require a judicial determination in place of attempts at severance by
contractual arrangements, express or implied, for the surrender and
relinquishment of children. Nothing in this chapter shall be construed to
allow discrimination in favor of, or against, on the basis of disability.
16-2004. Petition — Who May File. —
A petition may be filed by:
a. Either parent when termination is sought with respect to the
other parent.
b. The guardian of the person or the legal custodian of the child or
person standing in loco parentis to the child.
c. An authorized agency.
d. Any other person possessing a legitimate interest in the matter.
16-2005. Conditions under which termination may be granted. —
(1) The court may grant an order terminating the relationship where it
finds that termination of parental rights is in the best interests of the
child and that one (1) or more of the following conditions exist:
(a) The parent has abandoned the child.
(b) The parent has neglected or abused the child.
(c) The presumptive parent is not the biological parent of the child.
(d) The parent is unable to discharge parental responsibilities and such
inability will continue for a prolonged indeterminate period and will be
injurious to the health, morals or well-being of the child.
(e) The parent has been incarcerated and is likely to remain incarcerated
for a substantial period of time during the child's minority.
(2) The court may grant an order terminating the relationship and may
rebuttably presume that such termination of parental rights is in the best
interests of the child where:
(a) The parent caused the child to be conceived as a result of rape,
incest, lewd conduct with a minor child under the age of sixteen (16)
years, or sexual abuse of a child under the age of sixteen (16) years, as
defined in sections 18-6101, 18-1508, 18-1506 and 18-6602, Idaho Code;
(b) The parent has subjected the child to torture, chronic abuse or
sexual abuse, has committed murder or intentionally killed the other
parent of the child, has committed murder or voluntary manslaughter of
another child or has aided, abetted, conspired or solicited to commit
such murder or voluntary manslaughter, and/or has committed battery which
resulted in serious bodily injury to a child; or
(c) The court determines the child to be an abandoned infant, except in a
parental termination action brought by one (1) parent against another
parent.
(3) The court may grant an order terminating the relationship if
termination is found to be in the best interest of the parent and child.
(4) The court may grant an order terminating the relationship where a
consent to termination in the manner and form prescribed by this chapter
has been filed by the parent(s) of the child in conjunction with a petition
for adoption initiated by the person or persons proposing to adopt the
child, or where the consent to termination has been filed by a licensed
adoption agency, no subsequent hearing on the merits of the petition shall
be held. Consents required by this chapter must be witnessed by a district
judge or magistrate of a district court, or equivalent judicial officer of
the state, where a person consenting resides or is present, whether within
or without the county, and shall be substantially in the following form:
IN THE DISTRICT COURT OF THE __________ JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF __________In the Matter of the termination )
of the parental rights of )
____________________ )
___________________ )I (we), the undersigned, being the ____ of ____, do hereby give my (our)
full and free consent to the complete and absolute termination of my (our)
parental right(s), to the said ____, who was born ____, ____, unto ____,
hereby relinquishing completely and forever, all legal rights, privileges,
duties and obligations, including all rights of inheritance to and from the
said ____, and I (we) do hereby expressly waive my (our) right(s) to
hearing on the petition to terminate my (our) parental relationship with
the said ____, and respectfully request the petition be granted.DATED: ____, 20__
_________________STATE OF IDAHO )
) ss.
COUNTY OF ____ )On this ____ day of ____, 20__, before me, the undersigned ____, ____
(Judge or Magistrate) of the District Court of the ____ Judicial District
of the state of Idaho, in and for the county of ____, personally appeared
____, known to me (or proved to me on the oath of ____) to be the
person(s) whose name(s) is (are) subscribed to the within instrument, and
acknowledged to me that he (she, they) executed the same.IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.______________________
(District Judge or Magistrate)
The court shall accept a consent or a surrender and release executed in
another state if:
(1) It is witnessed by a magistrate or district judge of the state where
signed; or
(2) The court receives an affidavit or a certificate from a court of
comparable jurisdiction stating that the consent or the surrender and
release was executed in accordance with the laws of the state in which it
was executed, or the court is satisfied by other showing that the consent
or surrender and release was executed in accordance with the laws of the
state in which it was executed; or
(3) The court shall accept a termination or relinquishment from a
sister state that has been ordered by a court of competent jurisdiction
under like proceedings; or in any other manner authorized by the laws of
a sister state. In a state where the father has failed to file notice of
claim to paternity and willingness to assume responsibility as provided
for pursuant to the laws of such state, and where such failure
constitutes an abandonment of such child and constitutes a termination or
relinquishment of the rights of the putative father, the court shall
accept such failure as a termination in this state without further
hearing on the merits, if the court is satisfied that such failure
constitutes a termination or relinquishment of parental rights pursuant
to the laws of that state.
(5) Unless a consent to termination signed by the parent(s) of the child
has been filed by an adoption agency licensed in the state of Idaho, or
unless the consent to termination was filed in conjunction with a petition
for adoption of the child, the court shall hold a hearing.
(6) If the parent has a disability, as defined in this chapter, the
parent shall have the right to provide evidence to the court regarding the
manner in which the use of adaptive equipment or supportive services will
enable the parent to carry out the responsibilities of parenting the child.
Nothing in this section shall be construed to create any new or additional
obligation on state or local governments to purchase or provide adaptive
equipment or supportive services for parents with disabilities.
16-2006. Content of Petition. —
The petition for the termination of the parent and child relationship
shall include, to the best information and belief of the petitioner:
a. The name and place of residence of the petitioner;
b. The name, sex, date and place of birth, and residence of the
child;
c. The basis for the court's jurisdiction;
d. The relationship of the petitioner to the child, or the fact
that no relationship exists;
e. The names, addresses, and dates of birth of the parents; and where
the child is illegitimate, the names, addresses and dates of birth of
both parents, if known to the petitioner;
f. Where the child's parent is a minor, the names and addresses of said
minor's parents or guardian of the person; and where the child has no
parent or guardian, the relatives of the child to and including the second
degree of kindred;
g. The name and address of the person having legal custody or
guardianship of the person or acting in loco parentis to the child or
authorized agency having legal custody or providing care for the child;
h. The grounds on which termination of the parent and child
relationship is sought;
i. The names and addresses of the persons and authorized agency or
officer thereof to whom or to which legal custody or guardianship of the
person of the child might be transferred;
j. A list of the assets of the child together with a statement
of the value thereof.
16-2007. Notice — waiver — guardian ad litem. —
(1) After a petition has been filed, the court shall set the time and
place for hearing. The petitioner shall give notice to any person entitled
to notice under section 16-1505, Idaho Code, the authorized agency having
legal custody of the child and the guardian ad litem of the child and of a
parent. The petitioner shall give notice to the Idaho department of health
and welfare if the petition for termination was not filed in conjunction
with a petition for adoption or by an adoption agency licensed by the state
of Idaho.
(2) Notice shall be given by personal service on the parents or guardian.
Where reasonable efforts to effect personal service have been unsuccessful
or are impossible because the whereabouts of parties entitled to notice are
not known or reasonably ascertainable, the court shall order service by
registered or certified mail to the last known address of the person to be
notified and by publication once a week for three (3) successive weeks in a
newspaper or newspapers to be designated by the court as most likely to
give notice to the person to be served. The hearing shall take place no
sooner than ten (10) days after service of notice, or where service is by
registered or certified mail and publication, the hearing shall take place
no sooner than ten (10) days after the date of last publication.
(3) Notice and appearance may be waived by a parent in writing and
witnessed by a district judge or magistrate of a district court, or
equivalent judicial officer of the state, where a person waiving notice and
appearance resides or is present, whether within or without the county, and
shall be substantially in the following form:
IN THE DISTRICT COURT OF THE ____ JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ____In the Matter of the termination )
of the parental rights to )
___________________ )
___________________ )(a) minor child(ren)
I (we), the undersigned, being the ____ of ____, do hereby waive my (our)
right to notice and my (our) right to appear in any action seeking
termination of my (our) parental rights. I (we) understand that by waiving
notice and appearance my (our) parental right(s), to the said ____, who was
born ____, ____, unto ____, may be completely and forever terminated,
including all legal rights, privileges, duties and obligations, including
all rights of inheritance to and from the said ____, and I (we) do hereby
expressly waive my (our) right(s) to notice of or appearance in any such
action.DATED: ____, 20__
_________________STATE OF IDAHO )
) ss.
COUNTY OF ____ )On this ____ day of ____, 20__, before me, the undersigned ____, ____
(Judge or Magistrate) of the District Court of the ____ Judicial District
of the state of Idaho, in and for the county of ____, personally appeared
____, known to me (or proved to me on the oath of ____) to be the
person(s) whose name(s) is (are) subscribed to the within instrument, and
acknowledged to me that he (she, they) executed the same.IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.______________________
(District Judge or Magistrate)
(4) The court shall accept a waiver of notice and appearance executed in
another state if:
(a) It is witnessed by a magistrate or district judge of the state where
signed; or
(b) The court receives an affidavit or a certificate from a court of
comparable jurisdiction stating that the waiver of notice and appearance
was executed in accordance with the laws of the state in which it was
executed, or the court is satisfied by other showing that the waiver of
notice and appearance was executed in accordance with the laws of the
state in which it was executed.
(5) When the termination of the parent and child relationship is sought
and the parent is determined to be incompetent to participate in the
proceeding, the court shall appoint a guardian ad litem for the alleged
incompetent parent. The court may in any other case appoint a guardian ad
litem, as may be deemed necessary or desirable, for any party. Where the
putative father has failed to timely commence proceedings to establish
paternity under section 7-1111, Idaho Code, and by filing with the vital
statistics unit of the department of health and welfare, notice of his
commencement of proceedings to establish his paternity of the child born
out of wedlock, notice under this section is not required unless such
putative father is one of those persons specifically set forth in section
16-1505(1), Idaho Code.
(6) If a parent fails to file a claim of parental rights pursuant to the
provisions of chapter 82, title 39, Idaho Code, for a child left with a
safe haven pursuant thereto, prior to entry of an order terminating their
parental rights, that parent is deemed to have abandoned the child and
waived and surrendered any right in relation to the child, including the
right to notice of any judicial proceeding in connection with the
termination of parental rights.
16-2008. Investigation prior to disposition. —
a. If a petition for adoption is not filed in conjunction with a
petition for termination, or the petition for termination was not filed by
a children's adoption agency licensed by the state of Idaho upon the
filing of a petition for termination, the court shall direct the
department of health and welfare, bureau of child support enforcement to
submit a written financial analysis report within thirty (30) days from
date of notification, detailing the amount of any unreimbursed public
assistance moneys paid by the state of Idaho on behalf of the child. The
financial analysis shall include recommendations regarding repayment of
unreimbursed public assistance and provisions for future support for the
child, and the reasons therefor.
b. Upon the filing of a petition, the court may direct, in all cases
where written consent to termination has not been given as provided in
this act, that an investigation be made by the department of health and
welfare, division of family and children's services, or a licensed
children's adoption agency, and that a report in writing of such study be
submitted to the court prior to the hearing, except that where the
department of health and welfare or a licensed children's adoption agency
is a petitioner, either in its own right or on behalf of a parent, a
report in writing of the investigation made by such agency shall
accompany the petition. The department of health and welfare or the
licensed children's adoption agency shall have thirty (30) days from
notification by the court during which it shall complete and submit its
investigation unless an extension of time is granted by the court upon
application by the agency. The court may order additional investigation as
it deems necessary. The social study shall include the circumstances of
the petition, the investigation, the present condition of the child and
parents, proposed plans for the child, and such other facts as may be
pertinent to the parent and child relationship, and the report submitted
shall include a recommendation and the reasons therefor as to whether or
not the parent and child relationship should be terminated. If the parent
has a disability as defined in this chapter, the parent shall have the
right, as a part of the social study, to provide information regarding
the manner in which the use of adaptive equipment or supportive services
will enable the parent to carry out the responsibilities of parenting the
child. The person performing the social investigation shall advise the
parent of such right and shall consider all such information in any
findings or recommendations. The social study shall be conducted by, or
with the assistance of, an individual with expertise in the use of such
equipment and services. Nothing in this section shall be construed to
create any new or additional obligations on state or local governments to
purchase or provide adaptive equipment or supportive services for parents
with disabilities. Where the parent is a minor, if the report does not
include a statement of contact with the parents of said minor, the
reasons therefor shall be set forth. The purpose of the investigation is
to aid the court in making disposition of the petition and shall be
considered by the court prior thereto.
c. No social study or investigation as provided for in subsection b. of
this section shall be directed by the court with respect to the putative
father who has failed to timely commence proceedings to establish
paternity under section 7-1111, Idaho Code, and by filing with the vital
statistics unit of the department of health and welfare, notice of his
commencement of proceedings to establish his paternity of the child,
unless such putative father is one of those persons specifically set
forth in section 16-1505(1), Idaho Code.
16-2009. Hearing. —
Cases under this act shall be heard by the court without a jury. The
hearing may be conducted in an informal manner and may be adjourned from
time to time. Stenographic notes or mechanical recording of the hearing
shall be required. The general public shall be excluded and only such
persons admitted whose presence is requested by any person entitled to
notice under the provisions of section 16-2007, Idaho Code, or as the
judge shall find to have a direct interest in the case or in the work of
the court; provided that persons so admitted shall not disclose any
information secured at the hearing which would identify an individual
child or parent. The court may require the presence of witnesses deemed
necessary to the disposition of the petition, except that a parent who
has executed a waiver pursuant to section 16-2007, Idaho Code, shall not
be required to appear at the hearing.
The parent or guardian ad litem shall be notified as soon as
practicable after the filing of a petition and prior to the start of a
hearing of his right to have counsel, and if counsel is requested and the
parent or guardian is financially unable to employ counsel, counsel shall
be provided. The prosecuting attorneys of the several counties shall
represent the department at all stages of the hearing.
The court's finding with respect to grounds for termination shall be
based upon clear and convincing evidence under rules applicable to the
trial of civil causes, provided that relevant and material information of
any nature, including that contained in reports, studies or
examinations, may be admitted and relied upon to the extent of its
probative value. When information contained in a report, study or
examination is admitted in evidence, the person making such report, study
or examination shall be subject to both direct and cross-examination.
16-2010. Decree. —
(1) Every order of the court terminating the parent and child
relationship or transferring legal custody or guardianship of the person
of the child shall be in writing and shall recite the findings upon which
such order is based, including findings pertaining to the court's
jurisdiction.
(2) (a) If the court finds sufficient grounds exist for the termination
of the parent and child relationship, it shall so decree and:
(i) Appoint an individual as guardian of the child's person, or
(ii) Appoint an individual as guardian of the child's person and
vest legal custody in another individual or in an authorized agency,
or
(iii) Appoint an authorized agency as guardian of the child's person
and vest legal custody in such agency.
(b) The court shall also make an order fixing responsibility for the
child's support. The parent and child relationship may be terminated with
respect to one (1) parent without affecting the relationship between the
child and the other parent.
(3) Where the court does not order termination of the parent and child
relationship, it shall dismiss the petition; provided however, that where
the court finds that the best interest of the child requires substitution
or supplementation of parental care and supervision, it shall make an order
placing the child under protective supervision, or vesting temporary legal
custody in an authorized agency, fixing responsibility for temporary child
support, and designating the period of time during which the order shall
remain in effect.
(4) If termination of parental rights is granted and the child is placed
in the guardianship or legal custody of the department of health and
welfare, the court, upon petition, shall conduct a hearing as to the future
status of the child within twelve (12) months of the order of termination
of parental rights, and every twelve (12) months subsequently until the
child is adopted or is in a placement sanctioned by the court.
16-2011. Effect of Decree. —
An order terminating the parent and child relationship shall divest the
parent and the child of all legal rights, privileges, duties, and
obligations, including rights of inheritance, with respect to each
other.
