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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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Can a custodial mother file with the court to terminate parental

Resolved Question:

Can a custodial mother file with the court to terminate parental rights of the father if that father currently has an order of protection from the child in place and will for the next two years?
Submitted: 4 years ago.
Category: Family Law
Expert:  AlexiaEsq. replied 4 years ago.
Are you saying the PO is against the child? With the father as the person being protected?

Also, does the father pay child support?
Customer: replied 4 years ago.
The order of protection is against the father...there is a full stay away posed on him from the child
Expert:  AlexiaEsq. replied 4 years ago.
Does the father pay child support?
Customer: replied 4 years ago.
Well he had been close to $10,000 in arrears but shortly after our final court date regarding the order of protection judgement, he resumed payments for approximately the last 5 months.
Customer: replied 4 years ago.
Seemingly there is server problems with this site...I am still awaiting your response.
Expert:  AlexiaEsq. replied 4 years ago.

Dear mrs,

 

Thank you for your patience. Just to clarify for you, there were not apparent server problems at all. Here at JA you do not recieve a canned answer but, rather, we review the facts present and the legal question (attorneys do), then we provide research where necessary to confirm our knowledge or to provide the customer with some references to support the legal informatin provide and/or to also provide them with additional resources. As you know, this is not a layperson providing an opinion, however knowledgible or lacking in knowledge he may be, we are all lawyers here, putting in some time to assist. I hope that clarifies for you the wait :)

 

Now, as for your post:

 

I think it will depend very much on the basis for the PO, whether there were criminal convictions of child abuse, etc. I realize he must be a pretty poor excuse for a father, if there is a PO against him for 2 years, (unless he failed to defend against it, and it was acquired by default). However, most states, including NY, require very grave circumstance before such major action. This is so where there is no consent of the father to terminate and no one wanting to step in his place to adopt the child and financial become responsible in lieu of the father's child support, which will generally cease upon Termination of rights. Here is NY:

 

New York

Circumstances That Are Grounds for Termination of Parental RightsSoc. Serv. Law §§ 358-a; 384-b

An order terminating parental rights shall be granted only upon a finding that one or

more of the grounds specified below are based upon clear and convincing proof:

The parent has abandoned the child for 6 months immediately prior to the date on which the petition is filed in the court. - Here, that won't be found.

The parent is presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for the child. -- Not so here, as he does pay CS.

The child is a permanently neglected child.

The parent severely or repeatedly abused such child. -- CONSIDER this one if it applies.

When a court determines that reasonable efforts to reunite the child with his or her

parent are not required, a petition to terminate parental rights may be filed immediately.

Reasonable efforts shall not be required when:

The parent has subjected the child to aggravated circumstances, as defined below.

The parent of such child has been convicted of:•

Murder or voluntary manslaughter and the victim was another child of the parent.

The attempt to commit any of the above crimes-

Assault or aggravated assault upon a person less than age 11 that resulted in serious physical injury to the »»child or another child of the parent

The parent has failed for 6 months to keep the agency apprised of his or her location.•

An incarcerated parent has failed on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or to plan and arrange visits with the child.

The parental rights of the parent to a sibling of the child have been involuntarily terminated.•

‘'Aggravated circumstances'' means:

A child has been either severely or repeatedly abused. •

A child has subsequently been found to be an abused child within 5 years after returning home following placement in foster care as a result of being found to be a neglected child.

The parent of a child in foster care has refused and has failed completely, over a period of at least 6 months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect.

 

(http://www.childwelfare.gov/systemwide/laws_policies/statutes/groundterminall.pdf )

 

So, as you can see, I think it will be effected by the basis for the PO. And it would likely, as a practical matter, have to be seen as in the best interest of the child. Right now, that child is being financially support by the father, so this can be considered a barrier, particularly when the father is no longer a danger (in theory) due to the PO.

 

 


 

Sincerely,

 

S. Joy, Legal Expert

 

 

 

 

 

Customer: replied 4 years ago.
well she was at his home on a weekend visit and she awoke to him fondling her breast. Criminal charges (which is what I pursued first) werent feasible due to no physical damage or harm to be shown. Took it to family court, petitioned for an order of protection. He was the party who offered a 2 yr full stay away so as to not have the case have to go to trial but yet not admitting to any wrong doing. My daughter is fourteen and needless to say doesnt wish to be in his presence what so ever after this incident. And as long as she is a minor, I am the one who must undergo the process to protect her, so I just needed to know what my options might be once the PO has expired. I want to be legally sound in the event that upon the expiration of th PO that he will resume contact and/or visits with her, and in my eyes, that simply can not happen.
Expert:  AlexiaEsq. replied 4 years ago.

Hi Mrs,

 

What a horrible situation. And as a mother, I fully understand what you need to do, if possible. Aside from termination (which I think would be tough at this point) if he seeks visitation, I would vehemently oppose. Your daughter herself may be heard by the judge at that time. It is unfortunately you were advised not to seek criminal prosecution, IF you and your daughter would have wanted it - there is not a rule that there must be physical scarring for sexual assault of a minor - it is largely emotional, as we know. It is, however, often a he said/she said battle, so it can be very, very difficult, which may be what you meant or were told.

 

Also, your daughter may file a personal injury suit against him at some point, if she chooses to down the road.

 

It may be that if he tries to pull a silly move after the 2 year PO, you will have to proactively file a motion terminating visitation - I would suspect, however, that the PO acted as a modification of sorts to any existing visitation order. That being the case, it would appear that HE would have to make a motion to re-institute visitation and you would then oppose. One thing I would point out is that as an incestual pediphile, during the 2 years, he didn't even bother to get psychotherapy to curb his sick ways. Therefore, there is no evidence to suggest he has been cured of his proclivities. (He should be un Megan's list.)

 

Do you think he would AGREE to terminate his rights, if it meant you would agree to waive arrears and prospective child support forever? I have seen this work. And given the facts behind the PO, it might work. Would the money be a big enough lure for him?

 

Things to consider.

 

 


 

Sincerely,

 

S. Joy, Legal Expert

 

 

 

AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11691
Experience: 19+ Years of Legal Practice in Family law matters.
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