Because the consequences to you and your child are so serious, you must give a great deal of thought to your response to the court action to terminate your parental rights. You have the following options:
1. Attempt to regain custody of your child
You are entitled to a trial at which you will have the opportunity to defend against termination of your parental rights and try to convince the judge to return your child to you.
The fight to keep your parental rights and regain custody of your child is a difficult one. To have a chance of winning, you must work closely with your lawyer and be ready to devote a lot of time and energy to the case.
2. Place your child in the custody of a relative or friend
An alternative to termination of your parental rights is to try to have your child placed with a relative or friend. When DYFS first removes a child, it is required to look for relatives who might be able to care for the child. Now that DYFS has begun its action to terminate your parental rights, it probably will oppose moving your child to the home of a relative if the child’s current caretakers want to adopt the child and can be approved as adoptive parents. However, whether or not DYFS wants to move your child, you should tell DYFS and your lawyer about a relative or friend who could provide a good home for your child. DYFS is less likely to agree to place your child with a friend than with a relative, but you have the right to request that DYFS investigate the possibility of placement with both.
DYFS may place your child with a friend or relative from either side of the child’s family. If DYFS is considering a friend or relative with whom you do not want your child to live, tell your lawyer and DYFS.
Generally, DYFS will require foster parent training and a home study of any potential caretaker, including a relative or family friend. A home study includes criminal and DYFS records checks. Some people do not qualify to be certified as foster parents due to certain criminal history, prior DYFS involvement, or other facts that may be revealed by the home study. Even if DYFS does not approve, you may present your plan to place your child with your relative or friend to the judge at your trial as an alternative to termination of your parental rights. The judge must at least consider your plan.
Sometimes DYFS will agree to end a case by giving a relative or friend custody without terminating parental rights. If the case is closed by placing the child in the custody of a relative or friend, the parent may be able to work out visitation arrangements with the relative or friend. Sometimes, however, DYFS will not consent to the parent having any contact with the child or will place conditions on visits. Also, DYFS will usually get the right to have advance notice and the opportunity to oppose any attempt by one or both of the parents to get back custody of the child from the relative or friend in the future. However, as long as parental rights are not terminated, a parent has a right to go back to court at a later time to try to change the visitation and custody arrangements. The court will allow DYFS to argue against any changes it believes would be unsafe for the child.
Even if your first choice is return of custody of your child to you, consider suggesting that custody of your child be given to a relative or friend as a fallback alternative to termination of your parental rights.
A relative or friend who takes custody of your child might be able to get money to support the child from DYFS, as a certified foster parent, or from the welfare department. You also may be required to pay child support.
3. Kinship legal guardianship
Kinship legal guardianship is a legal alternative to termination of parental rights that is more permanent than placing a child in the custody of a relative or friend. However, it allows a parent to keep some parental rights to his or her child. In most cases, this includes the right to have visits and the right to decide whether to allow the child to be adopted or to change his or her name.
Only someone who has taken care of a child in his or her home for a year can be granted kinship legal guardianship. The caretaker’s home will be approved only after criminal history and DYFS records checks, a home inspection, and the completion of foster parent training. The court must determine that a parent has an incapacity that makes him or her unwilling or unable to take care of a child. Kinship legal guardianship cannot be awarded unless DYFS has made reasonable efforts to reunify a parent with a child and adoption of that child is not likely.
Financial assistance is usually available from DYFS to help a kinship legal guardian take care of a child. However, a parent may be required to pay ongoing child support.
If kinship legal guardianship of your child is awarded, getting your child back in the future may be very difficult. To undo the kinship legal guardianship of your child, you would have to prove by “clear and convincing” evidence that your incapacity no longer exists and that returning your child to you is in your child’s best interests.
If you decide that kinship legal guardianship would be a good thing in your case, you should tell your lawyer and request that DYFS and the court consider that option. If you oppose having your child placed in kinship legal guardianship, even as a way to settle your case, you should make that clear to your lawyer, to DYFS, to the law guardian, and to the court. You are entitled to a trial to defend against awarding kinship legal guardianship.
4. Voluntary surrender of parental rights and denial of paternity
Deciding to surrender your parental rights is a very serious decision that should be discussed with your lawyer. Surrendering your parental rights means that you agree to end your legal relationship with your child. A surrender of your parental rights ends your relationship with your child in the same way as a judge’s decision terminating your parental rights. The only remaining legal connection you will have to your child after surrendering your parental rights is your ongoing responsibility to pay child support. That duty will end if and when the child is adopted.
DYFS is supposed to provide you with counseling before it allows you to surrender your rights to your child.
If the court and DYFS accept the surrender of your parental rights, there will not be a trial. Once you surrender your rights, you cannot change your mind or appeal your surrender.
You can surrender your parental rights in two ways: a general surrender, which ends the parent-child relationship and allows DYFS to find an adoptive home, or an identified surrender, which ends the parent-child relationship but names a specific person to adopt the child. If the specific person you identify is not able to adopt the child, your parental rights will be reinstated and DYFS may begin termination proceedings again or ask you to make a general surrender.
If you have been named as a defendant father in this case, but you believe that you are not the father of the child and you do not want to get or keep any rights to the child, you can tell the judge that you deny paternity. If your denial of paternity is accepted, you can be dismissed from the case without a trial and formal termination of parental rights. If the judge does not accept your denial of paternity, you may be ordered to be tested for paternity.
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Copyright © 2011 Legal Services of New Jersey
This information last reviewed 10/28/11