Can You Terminate a Parent’s Parental Rights in California?

By Robert Travis, Of Counsel, Fenchel Family Law, PC

When one parent has been absent from a child’s life, failed to provide support, or had little meaningful contact with the child, the other parent may eventually ask a difficult question: Can I terminate the other parent’s parental rights?

In California, the answer is sometimes yes. But terminating parental rights is fundamentally different from asking a family court to restrict custody or visitation. It is an extraordinary remedy with permanent consequences, and the legal standard is demanding.

California provides a process for seeking termination of parental rights outside the juvenile dependency system through the Freedom from Parental Custody and Control Act, located in Family Code sections 7800 through 7895. The statute focuses on the welfare and best interests of the child and permits a court, under specifically defined circumstances, to declare a child free from the custody and control of one or both parents.

A common misconception is that parental rights can only be terminated when a stepparent or another person is prepared to adopt the child.

That is not necessarily true.

California appellate courts have recognized that a contemplated adoption is not an absolute prerequisite to bringing a petition under the Freedom from Parental Custody and Control Act. The statute can apply to a child under 18 when one of the statutory grounds for termination exists.

That does not mean, however, that a court treats termination casually. Courts generally examine the circumstances closely because an order terminating parental rights permanently changes the legal relationship between the parent and child.

In many family law cases, the most potentially relevant basis for terminating parental rights is abandonment.

Under Family Code section 7822, a proceeding may potentially be brought when one parent leaves a child in the care and custody of the other parent for at least one year without providing support or communicating with the child, together with the intent to abandon the child.

Failure to provide support or communicate can constitute presumptive evidence of an intent to abandon. Even minimal or “token” efforts at support or communication may not necessarily prevent a court from finding abandonment. But the party seeking termination must establish the required facts by clear and convincing evidence.

The analysis is therefore much more complicated than simply asking whether a parent has been physically absent.

California courts examine what actually happened during the alleged period of abandonment.

For example, a parent’s failure to see a child may look very different when the parent voluntarily walks away than when a court order prevents contact.

California courts have held that abandonment generally does not occur when a child is taken from a parent’s custody against that parent’s wishes. The required “leaving” must ordinarily be voluntary.

But that is not necessarily the end of the analysis. If a parent initially loses access to a child involuntarily and then makes no meaningful effort to restore the relationship, the parent’s later inaction can potentially become evidence supporting abandonment.

That distinction can become critical in cases involving restraining orders, criminal protective orders, custody orders, supervised visitation, domestic violence proceedings, or other court imposed limitations on contact.

Abandonment is not the only statutory basis for terminating parental rights.

California law also recognizes certain circumstances involving issues such as a felony conviction demonstrating parental unfitness or severe mental incapacity that renders a parent unable to adequately care for a child. Some grounds have additional procedural requirements, including expert testimony or prior juvenile dependency proceedings.

Whether any particular ground applies depends heavily on the specific history of the family.

A parental rights termination proceeding involves considerably more than filing papers and appearing at a routine custody hearing.

California law calls for an investigation into the circumstances of the child and the allegations supporting the petition. The investigator provides the court with a written report and a recommendation concerning the child’s best interests, and the court considers that report when deciding the case.

The court may also appoint an attorney for the child when representation is necessary to protect the child’s interests. An indigent parent who appears without counsel may also have a statutory right to appointed counsel unless that right is properly waived.

California law also directs courts to resolve these proceedings expeditiously. Generally, the initial hearing must be set within 45 days after the petition is filed, although contested cases can proceed to trial and continuances may occur under certain circumstances.

Parents considering this remedy should understand the financial consequences as well.

An order terminating parental rights does not merely eliminate custody and visitation rights. Under California law, it terminates the parent’s parental rights and responsibilities regarding the child. That generally includes ending the parent’s ongoing child support obligation.

For some families, that consequence alone substantially changes the strategic analysis.

A parent cannot ordinarily seek to permanently eliminate the other parent’s legal rights while expecting that person to continue carrying the financial obligations associated with parenthood.

There is also a human question that exists alongside the legal one.

Terminating parental rights permanently changes a child’s family structure. That becomes particularly important when siblings have different relationships with the parent whose rights are at issue.

The immediate conflict between two parents does not necessarily predict how a child will understand that relationship five, ten, or twenty years later.

For that reason, a sound legal analysis asks more than whether a petition can technically be filed. It asks whether the evidence is strong enough to justify filing it and whether pursuing termination actually advances the child’s long term interests.

A petition to terminate parental rights is one of the most consequential proceedings available under California family law.

Before pursuing one, a parent should understand:

Fenchel Family Law represents clients in complex California custody, domestic violence, divorce, and related family law matters throughout the San Francisco Bay Area.

Robert Travis is Of Counsel at Fenchel Family Law, PC and has approximately 30 years of legal experience.

This article provides general information about California law and does not constitute legal advice. Every family law matter depends on its particular facts and procedural history.

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