Termination of parental rights and sole legal custody are separate legal matters. However, they both rest on the same foundation, which is the best interests of the child. Note that the best interests of the child aren’t always the same as the best interests of the parent. More on that below.
That being said, in a way sole legal custody and termination of parental rights are similar. Both proceedings limit physical parent-child contact and affect the legal parent-child relationship. Termination of parental rights is simply much more radical than sole legal custody.
What is Legal Custody?
Most states have co-parenting laws that divide legal custody between the parents. That division is usually 50-50 or, more commonly, 60-40. In either case, the non-residential parent has a strong voice in matters like where the child goes to school and what doctor the child sees.
Some states have joint custody laws. The legal custody division is much more unequal, maybe 70-30 or even 80-20.
Legal custody is separate from physical custody. The parent with physical custody has the right to determine the child’s primary residence, even in co-parenting states. In this area, the law clearly designates one parent as the decision-maker.
Physical custody and legal custody are also separate from child support. The nonresidential parent is entitled to legal and physical custody according to the current court order, even if s/he never pays a dime of child support.
Delinquent parents usually face wage garnishment, bank account levy, and other harsh collection measures. Revocation or restriction of legal custody isn’t one of them.
What is Termination of Parental Rights?
Usually, the court could terminate parental rights, with or without that parent’s consent, in several situations.
Voluntary termination might be in the child’s best interests if a stepparent wants to adopt the child or the parent-child relationship has completely broken down.
Stepparent adoptions were rare a generation ago and common today. Almost half of American families are blended families (unmarried mother and father, second-marriage mother and father, stepchildren/half-children, etc.). Stepparent adoption creates a legal and emotional bond between stepparents and stepchildren.
Most courts offer streamlined stepparent adoption proceedings, such as the waiver of a social study or home study.
Children can have, at most, two parents. So, if a stepparent adopts a child, the court must terminate the parental rights of one biological parent. As the name implies, “termination” means the complete end of all child support obligations (although past-due child support is still owed), visitation rights, including electronic contact, and inheritance rights.
Involuntary termination might be in the child’s best interests if a parent has completely dropped out of a child’s life. Usually, a complete drop-out means not communicating with the child, not returning the child’s phone calls, and refusing to discuss child welfare matters with the other parent.
Parents who have extreme alcohol or drug abuse issues, which usually includes a refusal to seek treatment and at least one substance abuse-related conviction, may be subject to involuntary termination as well. These parents are clearly dangerous.
Some states allow additional involuntary termination grounds, such as a serious (5-plus years) child support delinquency, a prior involuntary termination, or the failure to respond to an involuntary termination petition.
A court can modify legal custody provisions, if circumstances change. Termination of parental rights is permanent.
What Are the Child’s Best Interests?
A judge determines the best interests of the child, based on factors like the parent’s preference, the child’s preference, the child’s current living environment, and any history of domestic abuse, be it physical or nonphysical.
The best interests of the child are subject to change. For example, if Dad’s alcohol problem limited his legal and physical custody at the time of divorce, a court might ease those restrictions if Dad sobers up.
What is Best, Sole Legal Custody or Termination of Parental Rights?
Except in extreme circumstances or as part of a stepparent adoption, sole legal custody is almost always a better option than termination of parental rights.
Most courts hesitate to terminate parental rights, outside of one of the aforementioned situations. This reluctance makes sense. Termination, especially involuntary termination, basically means a parent is unfit to make decisions for the child, and there’s no chance the parent could possibly pull it together.
A final note about termination of parental rights and stepparent adoptions. Since termination is so radical, many parents won’t agree to it, even if they have no objection to the adoption. A name change petition is often an effective compromise.
The biological parent retains his/her legal and physical custody rights, as well as the opportunity to obtain more rights later in a modification proceeding. On the other side, everyone in the blended household has the same last name.