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Terminating Parental Rights - Answers to Frequently Asked Questions

This article answers frequently asked questions about terminating a parent’s parental rights to a child.  

What is a termination of parental rights case?

A case to terminate parental rights is considered a suit affecting the parent-child relationship (or “SAPCR” for short). Termination of parental rights is the legal process where the court ends the parent-child relationship between a child and one or both of the child’s parents. 

Note: Parental rights can only be terminated by court order.

  • A parent can sign an “affidavit of voluntary relinquishment” of parental rights if the parent agrees that a court should terminate his or her parental rights to a child.
  • A parent can also sign an “affidavit of waiver of interest” in the child if the parent agrees to give up any interest he has in the child (or unborn child).

However, even with a signed voluntary relinquishment or wavier of interest, parental rights are not terminated until a judge signs a court order terminating those rights. A voluntary relinquishment or waiver of interest is not enough.

What if I’m afraid for my safety or for the safety of my children?

If there has been violence or you feel that you or the children are not safe, get help right away by calling one of the organizations listed below. You may be able to get free legal help.

  • National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233);
  • Advocates for Victims of Crime (AVOICE) at 1-888-343-4414; or
  • Family Violence Legal Line at 1-800-374-4673

For situations involving sexual assault, you can also call:

●    Legal Aid for Survivors of Sexual Assault at 1-844-303-7233

In an emergency, please call 911.

Find out more in the Protection from Violence or Abuse section of this website. 

Who can file a termination of parental rights case?

Either parent can file a termination of parental rights case.

If you are not the child’s parent, you can file a termination of parental rights case if you are:

  • A person with court-ordered access or visitation to the child (ordered by a court from another state or country). - or –
  • A man alleging to be the father of the child. – or –
  • A foster parent of the child placed by DFPS in your home for at least 12 months ending not more than 90 days before the date you file the termination case. – or –
  • A prospective adoptive parent who has been given standing under a statement to confer standing. – or –
  • You are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece or nephew and
    • Both parents are dead. – or –
    • Both parents, the surviving parent or managing conservator agree. – or –
    • The child’s present circumstances will significantly harm the child’s physical health or emotional development. – or –
  • You have had actual care, control and possession of the child for at least 6 months ending not more than 90 days before the date you file the termination case with the court and you are not a foster parent.– or –
  • You have been designated the managing conservator of the child in an affidavit of relinquishment or have been given written consent to adopt the child. – or –
  • You have lived with the child and the child’s parent, guardian or conservator for at least 6 months ending not more than 90 days before the date you file the termination case, and the child’s parent, guardian or conservator has died.

The following representatives and agencies may also file a termination of parental rights case:

  • The guardian of the child’s person or estate. – or –
  • The child filing the case through an authorized representative (such as a guardian ad litem or attorney ad litem). – or –
  • A governmental entity. – or –
  • The Department of Family and Protective Services. – or –
  • A licensed child-placing agency

When can I begin a Termination of Parental Rights case?

A termination of parental rights case can generally be filed (turned-in) before or at any time after a child is born.

However, the reason that someone is asking a judge to terminate parental rights will affect (and often shorten) the timeline of when to start the case. For example:

  • A termination case based on the other parent’s failure to support a child for a year must be filed no later than 6 months after the parent begins to support the child (if at all).
  • A mistaken paternity case must be filed by a man no later than 2 years after he finds out he is not the child’s genetic father.
  • A foster parent who has had possession of a child for at least 12 months must file a termination case no later than 90 days after the foster parent’s possession ends.

How do I start the termination of parental rights process?

Talk with a family law lawyer about starting the termination of parental rights process and what you will need to begin a case. You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:

Note: TexasLawHelp.org does not provide termination of parental rights forms for any reason other than mistaken paternity. 

What if I need orders right away?

If you need orders right away, you may ask a judge to make a temporary restraining order (TRO) and/or temporary orders. A temporary restraining order lasts until you can have a temporary orders hearing. Temporary orders typically last until the termination case is finished.  Read this article to learn more: Temporary Orders & Temporary Restraining Orders (TROs).

Note: A family violence protective order is different from a temporary restraining order. If you need a family violence protective order call the National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233). 

Do I need a lawyer to help me with my termination of parental rights case?

Termination of parental rights cases can be complicated and your rights as a parent and financial rights may be at risk. It’s a good idea to talk with a lawyer about your particular situation, even if you decide not to hire one. A family law lawyer can explain your rights and options.

It’s really important to talk to a family law lawyer if any of the following are true:

●    You are afraid for your or your children’s safety. – or –

●    Your case is contested. – or –

●    The respondent has a lawyer. – or –

●    You need child support. 

Can I hire a lawyer just to give me advice?

YES! You can hire a family law lawyer just to give you advice, review your forms, or help you prepare for a hearing. You may then be able to handle the other parts of your termination of parental rights case yourself. Hiring a lawyer for a limited purpose is called limited scope representation.”  

Does it cost anything to file an Original Petition to Terminate the Parent-Child Relationship?

Yes. When you file for termination of parental rights, you must usually pay a “filing fee.”  If you need to have the respondent(s) served, you must also pay an “issuance fee” and a “service fee.”  These fees vary by county. Contact the district clerk’s office in the county where the child lives to learn the fees. 

If you don’t have enough money to pay the fees, you can ask a judge to waive the fees by completing and filing a Statement of Inability to Afford Payment of Court Costs. Read this short article to learn more: Court Fees & Fee Waivers.

 

 

What gets decided in a termination of parental rights case?

A termination case ends the legal relationship between a child and his or her parent or parents. A termination of parental rights case can also (but does not have to):

  • name a managing conservator (or joint managing conservators)
  • name a possessory conservator
  • order child support to be paid
  • terminate a child’s right to inherit from or through his or her parent
  • change a child’s name

There may be other issues involved in your particular case.  

Read these articles to learn more:

Can the child’s other parent and I agree on the terms of the termination of parental rights case?

Yes. Termination of parental rights cases are known as “voluntary” or “involuntary.” In a “voluntary” termination of parental rights case, the parent(s) whose rights are to be ended agrees to the termination by either completing the required paperwork, or by asking the judge to terminate his or her rights.

The judge will usually approve an agreed Order of Termination as long as you can show that the proposed orders about the children are in their best interest.

What are the reasons a parent’s rights can be terminated without an agreement?

Some of the reasons a judge can terminate a parent’s rights without an agreement (called “involuntary” termination) include:

  • The parent abandoned or did not support the child
  • The parent endangered the child
  • The parent engaged in criminal conduct
  • The parent is otherwise unfit

Note: Termination of parental rights requires a very high legal standard, known as “clear and convincing evidence.” In almost all cases, the termination must also be in the “best interest” of the child. (Courts do not apply the “best interest” standard in termination of parental rights cases as to alleged fathers in certain circumstances or in terminating an acknowledged or adjudicated father’s rights in mistaken paternity cases. Read the law here: Tex. Family Code §§ 161.002, 161.005(a)(h).)

What is considered in the best interest of the child?

While courts have broad discretion in determining what is in the child’s “best interest,” courts look at the following factors from the Texas Supreme Court case, Holley v. Adams, as a guide in termination of parental rights cases:

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parental abilities of the individual seeking custody;
  5. the programs available to assist the individuals to promote the best interest of the child;
  6. the plans for the child made by the individual seeking custody or the agency;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and
  9. any excuse for the parent’s acts or omissions.

 

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 

A trial also considers evidence of the grounds for termination in its best interest finding.

How does a termination of parental rights case impact child support?

If termination of parental rights is not in the best interest of the child, there are other options available to you that would allow you to have more time with a child, for example, or to change an existing child support order.

A judge can make orders in the following types of cases without terminating parental rights to a child:

  • Suit Affecting the Parent-Child Relationship
  • Modification of the Parent-Child Relationship
    • A case can be brought to change (modify) child custody, visitation, or even child support without a judge terminating parental rights. If termination isn’t in the child’s best interest, a suit to modify is often the appropriate type of case to ask a judge to order the necessary change.
    • For more information and for forms, read this toolkit: I need to change (modify) a custody, visitation or child support order.

What is mediation?

If you and the respondent(s) don’t agree on the terms of the termination of parental rights case, you may want to consider mediation.  In mediation, an independent person (the mediator) will try to help you reach an agreement. The process is usually easier when you have an agreement. Be sure to talk with a lawyer first.  A lawyer can help you understand your options and negotiate a fair agreement. 

Should I agree to mediation if there has been abuse?

Mediation can be helpful when both people have equal power. Both people must be able to say what they want without being afraid or pressured.

Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work very well.

Mediation may be even more of a problem if the respondent abused you and you don’t have a lawyer. 

Is termination of parental rights required before I can adopt a child in Texas?

A court must generally first terminate the parent-child relationship between the child and all of the child’s living parents in order for the child to be eligible for adoption. However, termination of parental rights of both parents is not required in:

  • Step-parent adoptions. In step-parent adoptions, the biological parent that is joined together with the step-parent as petitioner in an adoption case does not have to have his or her parental rights terminated by a court. The only parental rights required to be terminated in step-parent adoptions are the rights of the other parent (not married to the step-parent) in the adoption case.
  • Adult adoptions. Adult adoptions in Texas do not require an order of termination of parental rights. For more information and for forms, read: I want to adopt an adult in Texas. -- NOTE: This resource is still being developed.

Note: Termination of parental rights can also be joined together with an adoption case. In a combined termination and adoption case, the court terminates the parent-child relationships in the same hearing as the adoption. Read this short article for more information: Texas Adoption Law.

Where can I read the law about termination of parental rights?

Read the laws about termination of parental rights in Chapter 161 of the Texas Family Code.

You can also read the laws about custody (conservatorship) in Chapter 153 of the Texas Family Code.