Termination of Parental Rights
Under Indiana law, a termination of parental rights occurs when a court issues an order that permanently ends all legal, social, and financial responsibility between the child and her parents. The parents have no rights to custody or visitation of the child. The parents also have no duty to future support of the child, but must pay any past due support obligations until they are satisfied, see Indiana Legal Services’ web resources.
Indiana law provides for the voluntary termination of parental rights, when it is determined by a court, on recommendation of the Department of Child Services that such a termination of rights is in the best interests of the child. The parent whose rights are to be terminated must be fully informed of his or her rights by the court before an order is entered.
Usually, children are best served with the full integration of both parents in their lives in every way. Where parents live apart and there is extraordinary conflict, it may not be possible for both parents to be involved in the children’s lives.
While I recommend to every single parent to seek to create an equal balance of parenting time and support for the children, where this is not possible, and an amicable alternative does not exist – it can sometimes be in everyone’s best interests to terminate parental rights.
Typically, this would be the case if one parent is completely unable or unwilling to spend adequate time with the child, and a sizeable support arrearage is mounting. After all, a custodial parent who is unwilling to allow a child to have ample time with the otehr parent should not expect support from that parent.
Again, this is a decision of last resort. Even to parents who are substantially alienated from their children and forced to pay support nonetheless, I do not recommend this course of action until every other avenue of rebuilidng the relationship has been exhausted.
I’m often asked to jump into a case because a noncustodial parent isn’t happy with how his/her present attorney is handling their case. To the parents, this is life itself. They aren’t seeing their children as much as they know they should, and they want it fixed now. To the attorney, it’s another sad or difficult case, and they often feel tehy are doing everything they can.
It’s hard to comment on the work of another professional in the middle of the battle. They are dealing with facts you don’t know, and they have their own skills and experience, just as you do.
I can comment on two things, though: (1) where I’m coming from myself as an advocate; and (2) how it contrasts with most good, local family law attorneys.
I’m a single parent myself. I have three beautiful daughters I’ve fought for continuously over the last six years. It’s why I do what I do now.
I’ve been through this. It taught me a few important lessons: as the parent, it’s you who has to engage the battle every day. You have to be willing to do extraordinary things, including having patience, but never giving up the fight. You have to truly walk the high road, higher than anyone will consider giving you credit for.
But you also need an advocate who sees a different end result than most do.
Typically attorneys get locked into a set of assumptions about the outcome of cases. It is very typical for an attorney to assume a long term outcome, i.e. one parent gets custody, the other parent gets some visitation. Unfortunately, the assumed outcome rarely works as conceived.
The problem is, non-custodial parents don’t have much control over the situation. The custodial parent can withhold that visitation, and unless the court will enforce your time with the children, it’s at the other parent’s discretion. And unless you have an attorney who will fight for that time, the court won’t enforce it.
Whatever you do, you need to lay out a plan for the court, ideally that creates a process to get you to joint (50-50), physical custody – or better put, equal parenting time. You cannot necessarily control the timetable – there are many factors that play into it – but the bottom line is you need a process, a plan, and you should continually be making progress toward equal parenting. Once you have equal parenting, then you show you are the parent who follows the schedule, cooperates, abides the court order. Let the other parent fight, disobey the order, and cause the problems – and document it. Ultimately, that is how you “get your kids back”, i.e. get custody of your kids.
It doesn’t matter who the attorney is, but this process needs to underlie the strategy for representing any noncustodial parent. Any other strategy assumes that you do not have equal rights as a parent, nor that your children have the right to the full and equal affection of both parents. The goal should always be to give the kids the full and equal attention of each parent. Then you, the parents become accountable for giving that to them. If the court will recognixe your rights, it is up to you to fully exercise them.
But until the court recognizes this, and until a lawyer will advocate for it, you may be locked out with no ability to give that to your kids.
There is no hustle here. If an attorney will lay this out for you and help you achieve it, great. There is no magic to this, it only takes the understanding of why it’s the right way to proceed and the work ethic to pursue it.
I decided to return to the practice of law and help in these kinds of situations, because most other attorneys just won’t. Truly, there aren’t a handful of attorneys in the country who will go to the trouble of laying a co-parenting plan before the court, and then working it. It upsets a system they have been working with for five, ten, 20, 30 years. Often they are afraid a judge will start ruling against them because suggest something out of the mainstream.
Full and equal parenting, like any other right, like any other responsibility, is something that has to be fought for. It won’t come without vigilance, diligence, persistence, patience – all of the virtues that have made each of the freedoms we enjoy so valuable.
But it also won’t come without effective advocacy. My aim is to provide and support that advocacy where and when I can.
Year after year, studies continue to show that chidlren fare better the more time they spend with their fathers. Yet, fewer than 30% of single fathers have sole or joint physical custody of their minor children, and the remaining 70% typically have the children in their care less than 25% of the time. This seems to utterly defy the evidence.
While it is true that there are fathers who more or less disappear from the scene, on their own, more often it is due to factors they do not control, nor desire. The other factors that weigh against a father’s time with the children include:
1) archaic, standard parenting time schedules that do not take into account individual situations;
2) the continuing favor afforded to women in custody decisions, and then also in determining the balance of parenting time;
3) the ability of mothers, as custodial parents, to manipulate situations to inhibit parenting time as awarded to a father.
These factors, often combine to push fathers to conclude that it isn’t worth the continuing fight to have time with children who act as if they do not want to be with their father at all. Unfortunately, the psychological profession, which contributes so much to the chosen patterns of parenting time schedules, has done very, very little to help fathers work through the lose-lose situations they often face.
This needs to change. Because lawyers, mediators and judges rely so heavily on the opinions of pyschology professionals, the lack of time children have with their fathers after divorce is not likely to change for the better until therapists determine to help create models for true family restoration.
It seems that men are not as easily molded into the mid- and post-treatment packages desired by the psych profession as are women and children, so they are left out to dry. Sadly, however, the ultimate suffering for the loss of connection with a father falls on the children themselves – as the studies reveal – and often, on their mother as well.
The lifetime emotiional toll of divorce and separation is enough in and of itself. It’s time for the family courts, the bar, and the surrounding professionals to work together at avoiding deeper tragedies. All that is required is for noncustodial parents to be awarded greater equality in the split of parenting time, and to see that this time is enforced as clearly and zealously as is child support.
As soon as this change is made, we will begin to see mroe cooperation in divorce and custody matters, and more emotionally healthy chidlren coming into adulthood.
Since the great debate over welfare reform in the mid-1990s, the phrase “deadbeat dad” has been woven into the fabric of our vernacular like one of so many generational patch-phrases holding together a pair of well-worn blue jeans.
You cannot read newspapers, watch TV, or listen to radio news for very long without encountering this phrase, and it is not likely there are many conversations in a crowded beauty salon that pass without this label being pasted on some man, who happens to have fathered the child of some woman, who is quite unhappy with this man and his actions relating to the child – or children. In May 2009 alone, there were over 60,000 google searches that included the phrase “deadbeat dad” or “deadbeat dads”.
It is difficult to find the precise origins of the phrase, but my first recollection of hearing this phrase was in the early 90’s with Newt Gingrich and Bill Clinton duking it out over whose leadership would bring about the harshest punishment against those who would bear this label. Governors in several Midwestern states, where the recession of that time had taken an enormous toll, were elected on the promise of making these men pay for their own children’s upbringing, and ending the welfare system that was so costly at the time, and so hurtful to our overall economic productivity.
An image was created of a man using food stamps to buy beer and cigarettes and never working, while living in his girlfriend’s apartment, which was paid through taxpayer funded welfare checks because she had borne children out of wedlock – with him, or perhaps another man. The welfare system was wrong and needed to be corrected. But what these women needed was a system that ended incentives for bad choices on her part as well as a father’s part, not just on his. She was just as much of a deadbeat as was he. In fact, perhpas more – as it was she who collected the welfare check – men were never allowed to do this.
One force behind welfare reform was to try to force fathers to support mothers and children instead of the government. A man who didn’t support his children was considered a deadbeat in times past – especially if he consumed liquor, stayed away from home, was unfaithful to his wife, etc. But the phrase had never before been directed at men who loved their own children more than life itself, but through no choice of their own, couldn’t be involved in their kids’ lives and/or were unable to support them financially.
This all changed with the Welfare Reform Act of 1996. Combined with the provisions of the Violence Against Women Act, and earlier impositons of the federal government relating to the enforcement of child support, such as the Bradley Amendment, which mandates that a child-support debt cannot be retroactively reduced or forgiven even if it is subsequently proven that the debtor could not have been the father.
So what is a deadbeat dad? Is that a reference to nonpayment of child support? If so, the fathers who do not owe support but do far less for their own children are exempt. Does it mean he voluntarily fails to pay that support, or does it include men that cannot pay thorugh no fault of their own? But how can anyone be sure of the difference between these? Often mothers come to court and ask a court to impute income to a man that he does nto actually have – and to order him to pay support based on the speculative income. If he can’t pay that, does that make him a deadbeat?
In my research for this article, I found in searching facebook groups and other internet communities that the most common bond, or reference to “deadbeat dads” was from women complaining of fathers who did not see their children, spend time with thme, send cards or birthday gifts, or even bother to call.
Perhaps there is an important lesson to be garnered from these perspectives. Maybe our focus has been has been too much and too long on the idea of dads as payers of support. Maybe we have neglected what is most important to both mothers and fathers regarding his relationship with his children – the time they have together. And maybe, just maybe, if the courts, the bureaucrats, the psychoanalysts, the custody evaluators, the moms, the neighbors, the preachers, teachers, the media, and all the other name callers, – everyone – maybe if everybody who comments on the state of the family, would stop and think about what is really most important to the kids too – we would realize it’s the same thing.
What it all comes down to – “in the best interests of the children” – is how much time they can spend with their Dad. And if we all do our part just to help make it possible, and not to try to make it happen , perhaps a very surprising outcome would arise – dads wouldspend time with their kids, because they could, and no one was preventing it for a change. If we did that one little thing, perhaps we would find the phrase “deadbeat dad” as common in our language as “eight track tape” – we just wouldn’t need it any more.
The Thompson Law Office provides legal service to individuals and families relating to issues of divorce, child custody, child support aand other areas with the goal of preserving family bonds between children and both parents. Attorney Andrew J Thompson writes articles and speaks to audiences on issues of reconciliation within families in high conflict situations.
Is Parenting A Civil Rights Issue?
by Andrew J Thompson
Very few family law attorneys, and perhaps fewer local courts in America treat parenting matters as a civil rights issue. I have had many priatitioners inform me that civil rights or Constitutional issues just don’t come into play with respect to divorce, custody or child support matters. This seems rather strange given that the United States Supreme Court itself has recognized parenting as a fundamental right, Troxel v. Granville, 530 U.S. 57 (2000).
Given the Supreme Court’s disposition, the importance of parenting in general, and the long, deep American tradition of looking upon family as a focal point of our our values and life activities, it should follow that parental rights would be treasured at all levels of society. So why isn’t that the case?
Let’s walk through some possible answers, the problems these present, and some solutions that can help ensure that these rights will be protected at every level of government in a meaningful and productive way.
First, the nature of the relationship between family and the broader society necessarily means that the government and the courts have traditionally been limited in how much protection they can offer to an individual household. This has changed considerably in the last generation, however.
In fact, if anything, rather than the government protecting the family as a unit, in the past generation, there has been more and more intervention from child protective services, local police units, foster parenting agencies, etc. in ways that override one or both parents’ authority within their own home.
Regardless, however, courts often perceive that they are helpless to look behind closed doors and tell what is really happening within a family. They can’t or won’t enforce rights except on matters which occur out in the open – whether these rights are fundamental or not.
Second, there is a similar perception that the enforcement of rights within a family means the protection of women and children, which in turn means protection from a father. That being the case, parenting itself is in no way treated as a civil rights issue, though perhaps women’s rights are being protected on multiple levels in multiple ways.
This results in a bifurcation of the protection of the rights of a woman that is not widely understood. While she maintains a high level of government protection from undesired advances from her husband or boyfriend, she maintains little if any protection from the government itself with respect to her relationship with her children.
Constitutionally, men and women are guaranteed equal protection as to each other, and higher protection as adults than children, with all individual’s protected from intrusion by the government. In an unwritten fashion, however, the law prefers women over men, children over women, and governmental agencies over all. Thus in practice, the government operates nearly in reverse of what the Constitution intended.
Finally then, we approach the crux of the problem. But there is one additional element that needs to be considered – the way local systems of government operate, including their inter-relationship with state and federal levels of government. Local systems lend themselves to corruption via the limited resources that exist for holding them accountable. As people are elected or appointed by their friends within the community, it’s likely there is little opposition at a level that would challenge their credibility or actions. Hence, local officials often are able to ignore significant conflicts of interest that may sway them to handle a matter in a manner that is unbalanced or biased.
But these conflicts exist vertically, through the state and federal government, as well as through the networks of local relationships an official has. This is due to the need for funding to keep these government employees working. That funding typically comes from beyond the local tax base. It is paid for either by the state, or in the case of the collection of child support, about 40% has been paid by the federal government with matching funds. The matching funds were suspended in December 2007, but can be expected to be revived in 2009.
Given the influence presented by these conflicts, it should not be surprising how easily local courts choose to overlook a parent’s Constitutional rights. But is this wrong? Should parenting be treated as a civil rights issue? If so, how?
It’s one thing to note that the Supreme Court’s recognition of parenting as a civil, Constitutional right. It’s another to assert how it should be recognized within the communities in which we live. When it comes to divorce, custody and the rights of parents in relation to their time and the raising of their children, we need to first come to grips with how common it is for children to be raised in single parent households and how regularly father’s are excluded or limited in their role as a parent in these cases.
“The vast majority–84 percent–of custodial parents are mothers, and courts awarded child support to 61 percent of them, compared to 36 percent of custodial fathers, according to 2005 census data. Failure to pay [child support, however,] cuts across gender lines, and less than half of all non-custodial parents met their full obligations.” Child Support Revenues Jump in Obama’s Home State, 08/21/08 By Claire Bushey.
Numerous sources are available to demonstrate that it is the interference by a custodial mother that is most likely to inhibit the time and relationship between a father and his own children, for example: Psychological and Structural Factors Contributing to Disengagement of Noncustodial Fathers After Divorce .
In itself, this raises extraordinary problems for the psychological well-being of the children of divorce. But a significant part of the problem can be resolved by taking away the leverage one parent has to disenfranchise the other from the children’s lives by balancing the power that is left in the hands of both parents regarding the children.
This possibility is regularly set aside in order to protect a mother’s financial support from the father, because courts claim to be ill equipped to resolve differences between parties acting with equal authority, and because it is assumed that the father will ultimately yield to the mother in matters of parenting.
But all three of these assertions bring to light the importance of recognizing and enforcing the protection of a father’s fundamental rights as a parent. Constitutional protections are needed most precisely in cases when cultural stereotypes and assumptions are employed to inhibit an individual’s access to justice – and that is what occurs whenever a father is treated unequally with a mother of the same children.
Until we reach a point where as many families have the father as the custodial parent as the mother, father’s need to be treated with special care and their rights carefully preserved in the courts and administrative offices that govern parenting time and child support.
More attorneys are needed who will stand up for the children, families and fathers that are discriminated against by a system that enables the disenfranchisement of one or both of a child’s parents. If you have a matter that demands this kind of attention, please visit my website, ThompsonLaw-IN.com and contact my office today.
Under Indiana law, a court must determine custody and enter a custody order in accordance with the best interests of the child.
In determining the best interests of the child, there is no legal presumption favoring either parent. In fact, however, more women than men are awarded custody, as is common throughout the United States.
The court must consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years old.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(B) school; and
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and other than either parent.
Joint legal custody may be awarded only if the court finds it is in the best interests of the child. This is actually a broader window for joint custody than many states, which require that joint custody of any kind is by agreement only. Nonetheless, joint custody in Indiana does not cover specific parenting time arrangements. Therefore, the parties may have joint legal custody, but one parent may still have substantially more or less parenting time than the other.
Indiana Parenting Time guidelines were established on the premise that it is the best interests of children to maintain frequent, meaningful and continuing contact with each parent. The guidelines are based on the developmental stages of children. In other words, what is appropriate for parenting time for a pre-schooler is quite different from that of a teenager.
The guidelines contain commentary stating that parenting time of a non-custodial parent is not limited to a minimum established under order of the court. In other words if a non-custodial parent can spend more time with a child, this should be encouraged by the custodial parent in most situations. The guidelines do emphasize flexibility on the part of both parents.
The guidelines do not apply to situations involving violence, substance abuse, risk of flight with a child, and other situations that pose a significant risk to the child. In all other cases, the parenting time guidelines are presumed to apply and govern the administration of parenting time issues.
Child support in Indiana is based on a formula derived from a consideration of both parent’s income and the number of days per year children spend in the household of each parent. While the formula itself yields a very objective result, determination of income can be treated as a more subjective exercise. Thus, it becomes very important for both parents to think carefully about the resources that are available and the particular needs of the children that need to be covered. Child care expenses and health insurance for the children are both factored into the formula. Extraordinary educational expenses can also be included in the factors from which support is finally determined.
If you are facing a divorce with children or conemplating any action that would trigger an impact on custody, parenting time or child support in your life – visit Thompson Legal Services or contact Andrew Thompson for an assessment of your situation today.