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What are the Rules Governing Visitation after the Termination of Parental Rights?
Mar 28, 2018 | Custody, Family Law, Latest
Wondering if parental rights are terminated, can they be reinstated?
Once parental rights have been terminated by the courts, it can be hard to get them back, but it’s not impossible.
Parental rights can be terminated either voluntarily or involuntarily for a variety of reasons. Depending on the circumstances of your case and the legislation in your state, there may be a possibility to reinstate parental rights, though this is not a common or easy process to achieve.
Learn more about the criteria in different states and reasons parental rights might be able to be reinstated after they were previously terminated.
Can Parental Rights be Reinstated?
Yes, it is possible to reinstate parental rights, though not in all cases or states.
Each state has its own child custody specifications and only a handful have existing legislation and precedent for the restoration of parental rights after the previous termination,
There are specific requirements that must be met for a court to consider the motion to restore parental rights in the state of Virginia.
Requirements for Restoring Parental Rights in Virginia
There are some circumstances in the state of Virginia where parental rights can be reinstated after they have been terminated.
A parent whose rights have been terminated by the court cannot request themselves to have them restored. For children over the age of fourteen who have not been adopted and are still under the custody of social services, either social service or the child’s current guardian can file to attempt to restore parental rights to their biological or previous parents.
Some requirements from the
Code of Virginia Law regarding the restoration of parental rights:
- Both the parent and child (age 14+) need to consent to the restoration of parental rights
- The child has not found permanent placement and has yet to be adopted, or it is not likely for them to successfully find permanent custody in a timely fashion
- The child has previously been proved to be neglected or abused, is a delinquent, or needs further supervision
- The parental rights have been terminated a minimum of two years previously before the motion was filed to have these rights reinstated (though a court can accept petitions prior to this two-year period if the child is close to turning eighteen).
- For children younger than fourteen, local social services in conjunction with a child’s current legal guardian (if they have one) can petition the courts for the restoration of a parent’s parental rights.
How Are Parental Rights Reinstated in Virginia?
In Virginia, courts must have a hearing to come to a verdict on a petition to restore parental rights.
This first hearing
will require the parent in question to demonstrate and prove with clear evidence that they are capable of caring for their child. If the court deems the evidence substantial and in the best interest of the child, they can grant the petition and restore your parental rights on a temporary basis.
It is often the case that local social services
will be involved to supervise and evaluate your ability to provide for and care for your child after your rights have been reinstated.
After this first hearing, parental rights are not fully reinstated. There is a second hearing
that takes place around six months after the first; at this juncture, the court will determine if your parental rights can be permanently restored.
In this second hearing, the following factors are taken into consideration by the court:
- The evaluation of social services in the six month period since the initial hearing
- If you have consented to permanently take full custody of your child
- If you have remedied the reasons that led to your parental rights being terminated in the first place
- The age of their child and their preference of placement
Some other things that court will look at are the child’s health and safety under your custody as well as other material circumstances and changes that may occur with the restoration of your parental rights.
After all these considerations, if the evidence is shown that you are consenting and capable of caring for your child, the court should then grant permanent restoration of your parental rights.
How Are Parental Rights Reinstated in Virginia?
Not all states have clear existing legislation on the reinstatement of parental rights. Guidelines and requirements vary from state to state, as is the case in other areas of family law and child custody.
The following are examples of existing legislation in three other states regarding the reinstatement of parental rights:
California
According to
California. Welfare and Institutions Code § 366.26, if a child is no longer going to be adopted for whatever reason (age, circumstance, etc.), it is possible in California for parental rights to be installed if this is determined within the best interest of the child. For children under the age of twelve, more specific evidence is required for the courts to prove reinstatement is the best option for the child.
Illinois
In existing Illinois Statutes [705 Ill. Comp. Stat. 405/2-28 and 705 Ill. Comp. Stat. 405/2-34], only the Department of Children and Families or the child themselves can apply to reinstate parental rights in specific circumstances. Such applications can be made in situations where a minor has been a ward of the state for over three years after the previous termination of parental rights and has not been adopted and is not likely to find a successful plan for permanent placement, thus it would be in their best interest to be reinstated with the biological parents given the court finds them to be fit and able guardians.
North Carolina
According to a
2011 North Carolina Law, a minor whose parental rights have been terminated, their current legal guardian, an attorney, or a department of social services can file to have a parent’s rights reinstated. There are many other questions for the courts to consider: is the child older or younger than twelve? do they currently have a legal guardian? Are they not in adoptive placement? Are they likely to be adopted within a reasonable amount of time?
Check out this
state guide from the National Conference of Legislatures to learn more about the requirements and legal precedent for the restoration of parental rights in different states.
Final Thoughts
If your parental rights were terminated, can they be reinstated?
Yes, potentially.
Talk to a lawyer who specializes in family law to learn more about circumstances and requirements for restoring parental rights in Virginia or in your state.
Contact Pond Law Group
Our legal team specializes in
family law and is here to help you in your time of need.
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