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Parental Rights – Surrender vs. Termination in NH

Being a parent is one of the most wonderful gifts in the world.  As such, Courts are reluctant to come between a parent and a child.  However, there are times when the court will remove a parent’s rights.  This is known as a termination of parental rights.  There are also times when a parent may wish to voluntarily give up his or her rights as a parent to the child.  That is known as surrendering parental rights.  Each of these processes must be done through the New Hampshire courts in a specific manner.  The purpose of this article is to explain the difference between the two processes and reasoning for surrender of parental rights vs. termination of parental rights in NH.

Surrender of Parental Rights

There are a number of reasons that a parent may wish to completely surrender his or her rights to a child, or sever his or her relationship with the child.  The parent may be too young, have an inability to physically care for the child or have some type of mental disability.  The parent may be incarcerated or simply have no desire to be a part of the child’s life.  Regardless of the reasons for the desire to surrender the parental rights, it is important to understand one thing: Once the process is completed, this is almost always a permanent decision.   The Court will only consider vacating (overturning) an order for surrender where a party can show fraud or duress at the time that the decision was made and that the surrender was not in the best interest of the adoptee.

The Process of Surrender

Each parent bears a financial responsibility for their child.  If a parent desires to surrender his/her rights, he cannot do so simply to avoid paying child support.  This is so because surrender only occurs where another person takes over the parenting of and financial responsibility for the child. In other words, there must be a person held responsible to pay for the child’s support.

If surrender is approved by the Court, the financial responsibilities for the child are extinguished moving forward.  However, all past due support remains due and owing. The adopting parent then becomes financially (and parentally) responsible for the child moving forward.

Common questions and scenarios:
  • Ex: Dad has custody of 3 children.  Mom is incarcerated and would like to surrender her parental rights to Dad’s new wife.  New wife, upon adopting the 3 children, will assume all parenting for the children.  Mom will be removed as parent of the 3 children permanently with no parenting rights and no financial obligations to the child (other than those that are already accrued and past due).
  • So what happens if I simply don’t want to take part in the child’s life but there is no other party that wants to resume my parenting duties?   If a parent chooses to have no relationship with a child, that is his/her right.  In this circumstance, it is not a “surrender,” but rather, he/she would simply agree that he has no decision making responsibilities and/or parenting time.  Child support will continue, however.
  • Ex: Mom has custody of 1 child.  Dad wants to surrender all parenting rights and walk away.  Dad cannot surrender his responsibility to pay child support.  If he chooses to have no relationship with his child, that is his right (and in this circumstance, it is not a “surrender,” but rather, he would simply agree that he has no parenting time, etc.), but he must continue to pay.

Termination of Parental Rights

NH Statute states that a person’s parenting rights may be terminated where there is evidence of:

  • Abandonment
  • Neglect
  • Abuse
  • Inability to provide proper care
  • Knowingly allowed another to harm child
  • Inability to provide care due to felony incarceration
  • Conviction of murder, manslaughter, felony involving the child or conspiracy of any of these crimes

Although there are times when removing a child is necessary, there are also times when defending against that removal is warranted as well.  The Court considers rights of parents to be essential and not only wants, but encourages each parent to be part of the child’s life.   Therefore, in making this decision, the Court will take many things into consideration, but the ultimate finding is the “best interest” of the child.  Is it in the best interest of the child that this parent be a part of his or her life? Is this parent able to properly assist in caretaking? Is there something that makes this particular person unable to parent?  Are there safety issues that are a concern with this parent?

Let’s be clear:  a parent need not be a model parent.  That said, the child must be safe during his time with a parent and the Court must be convinced that the parent-child relationship is in that child’s best interest. Termination of parental rights is also a permanent decision.  Because of this, the Court sets a high bar which must be met before removing those rights.

Termination of parental rights will cease any obligation to pay child support.   However, it will not relinquish any arrears.  So, if a party owes past due child support, that will continue to be due and must be paid. However, no child support will be imposed moving forward.

Contact

Understanding the surrender of parental rights vs. termination of parental rights in NH requires an experienced attorney to navigate the process.  If you are a parent looking to consider surrendering your rights, or a parent wishing to defend those rights, Christine can help you.  Each family is unique and each situation is complex.  For these reasons, it is critical that you hire an experienced family lawyer that understands the law and the process of the court. Contact us here where you can email, call or complete a form.

 

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