The Bunny Hutch is a fine Virginia Beach spot to take the little ones to meet adorable animals. We support the fine work its conservation wing does. The Bunny Hutch is not, though, the sort of place anyone feels compelled to return to week after week. Yes, it’s the home of Junior, “America’s Biggest Bunny,” but frequent visits could result in frequent adoptions of needy animals. Yep, for most Virginians, once a year is probably enough. What about your own children’s mother, though? What if she seldom shows up to see her own kids? Can she show up once a year for parenting time and that is “enough?”
Separation and Divorce
If you and your wife are separated, you probably agreed to child visitation (whether through a proper separation agreement or informally) so your kids could continue to enjoy relationships with both of you. That was the goal, anyway.
With children in the picture, separation leads to divorce in Virginia after one year (under Code of Virginia § 20-91), during which time the courts expect both parents to make continued efforts to be involved in their children’s lives.
Upon divorce, physical custody of the children passes either to one parent through sole custody, or both parents through joint or shared custody. The judge determining custody takes into account the ongoing relationship each parent has demonstrated, under Code of Virginia § 20-124.3 in not one but two places:
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; …
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; …
What are you to make of the mother who, instead of visiting her own children frequently, either during the separation or after the divorce is final? What must her children think of her?
Terminating Parental Rights in Virginia
Terminating parental rights in The Commonwealth of Virginia is a little like putting a dress on a pig. Nobody is really “for” it, the end result leaves a lot to be desired, and the process itself is a bit messy.
If you feel you have a strong case compelling a court to terminate your ex-wife’s parental rights, you need to work with a strong family law attorney. What you perceive as neglect, cruelty, or abandonment of your children by their mother may not meet a legal threshold for terminating her parental rights.
Then again, Virginia prioritizes its children, not its adults, in legal proceedings involving kids. The law stipulates that every judgment must be “in the best interest of the child,” which in some cases could mean getting the mother out of the picture.
Why Terminate Parental Rights?
As the Virginia Legal Aid Society explains, three reasons to terminate parental rights in the Commonwealth are:
- Habitual abuse or addiction to drugs or alcohol, and the parent has not followed through with treatment that could have improved their capacity to function as a parent;
- The parent has a mental or emotional illness or intellectual disability of such severity that there is no reasonable expectation they’d be able to care for the child;
- The parent has failed to follow through with rehabilitative efforts to reduce, eliminate, or prevent their abuse or neglect of the child; …
Virginia law does not allow your children’s mother to voluntarily terminate parental rights. She can, if she feels she does not want to parent them, petition Juvenile and Domestic Relations Court to assign custody exclusively to you, with visitation rights for herself. She also cannot attempt to cede parental rights to avoid paying child support.
Making the Case for Terminating Rights
Making the case for severing parental rights is difficult; you need an experienced family law attorney, since you are not asking the court to place your children in foster care (from which it is far easier to terminate parental rights). Instead, you are telling the court that your children have two parents, but their mother is not fulfilling her duties under the law, even though you are.
The clearest route to show the mother’s neglect is by abandonment. If she has had no contact or provided no material support for the children for 30 days, as described in Code of Virginia § 20-81, that “shall be prima facie evidence” of abandonment. In many ways, abandonment is a far easier threshold to meet than proof of drug abuse, alcohol abuse, mental illness, or emotional illness.
Though child abuse itself (causing the child specific harm whether physically, mentally, sexually or emotionally) is clear grounds for terminating parental rights, most attorneys would advise you, as the former spouse, to approach this strategy extremely cautiously. You may unintentionally ensnare yourself (“If you knew these were her behaviors, why did you allow it to go on?”), or you could unfairly paint your ex-wife with a broad and permanent brushstroke.
One advantage of seeking legal termination of parental rights in this case (besides the obvious benefit to the children) is that your own custody case (in which you seek sole custody) can be accelerated under Code of Virginia § 20-146.29. The two related legal matters impact each other, all for the protection of the children involved.
We’re Family Law Attorneys for Men ONLY
Please call The Firm For Men at 757-383-9184, or consider contacting us online, to speak with real Virginia family law attorneys who can help sort out parental rights, child custody, parenting time and child support issues. Our attorneys work exclusively for Virginia’s men, defending their rights and enforcing equitable family law in the Commonwealth.