Parental Rights and Losing Them

 Posted on October 16, 2017 in Child Custody

parental rights, Wheaton family law attorneysDespite a common misconception, merely being the biological parent of a child does not grant an adult immediate and total governance of that child’s life. Parental rights manifest when someone accepts legal responsibility regarding a child, and those rights can be lost. Still, there are quite a lot of misconceptions about parental rights that it is important to correct.

Definition of Parental Rights

Generally speaking, parental rights exist in any person who has been legally granted decision-making authority for a child—often referred to as legal custody. Despite the name, parental rights may be apply to anyone who has custody, including grandparents, or even an unrelated person or organization. It is a matter of good public policy and general fairness that, if possible, every child should have acknowledged legal parents. In Illinois, by law, a biological father actually has no legal rights to his child unless he acknowledges paternity.

The concept of tangible parental rights was articulated best in jurisprudence by the case of Santosky v. Kramer, 455 U.S. 745 (1982), in which three children were removed from a home after accusations of abuse. The state only had to prove there was permanent neglect “by a fair preponderance of evidence,” which is a relatively low legal standard. The Santoskys argued that such a low standard violated their parental rights, and the Supreme Court agreed, holding both that parental rights exist under law, and that such a low evidentiary standard would harm them.

Winning and Losing Parental Rights

While historically, losing one’s parental rights was an irreversible process, it has been possible (in limited circumstances) to regain them since 2009. However, this is extremely rare. The more common scenario in terms of gaining parental rights is when one applies to adopt a child.

In Illinois, parental rights may be terminated either by the government (such as in cases where criminal neglect is present) or as a result of an adoption-related proceeding. It is not technically possible for someone to unilaterally surrender parental rights, though if there is a history of abandonment a court may consider revoking that parent’s rights. A good example would be when a parent walks out on a family and never contacts them again, or if a baby is abandoned at a hospital.

Illinois mandates specifically that if someone has been convicted of three felonies, with the last one being within five years’ time, that a rebuttable presumption is created that he or she is “depraved,” with the implication being that their parental rights should be terminated. However, apart from that, there are surprisingly few specific statements that list grounds upon which parental rights will be terminated. Aside from proven instances of severe abuse or neglect, Illinois courts are reluctant to take such an action. It is considered good public policy to work toward a two-parent situation for each child.

More evidence of this is seen in the fact that rights cannot be terminated unilaterally. It is an unwritten rule that if a spouse seeks to terminate the parental rights of their children’s other parent, the request will be more favorably considered if there is another person—such as a stepparent—willing to step in as a parent.

Contact a Family Law Professional

If you are in danger of losing your parental rights, or if you believe that your former spouse should lose theirs, we can help you weigh your options. Contact an experienced Wheaton family law attorney to discuss your case today. Call 630-871-1002 for a free consultation.


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