To terminate parental rights, you must show two factors:
1. That you have physical custody of the child; T.C.A. 36-1-113
3. That termination of parental rights is in the child’s best interest.
Recent changes in the law impact what someone seeking to terminate parental rights must show in court. T.C.A 36-1-115.
Under the old law, Courts had to make specific findings, using 20 factors, as to why termination was in the child’s best interest. Under the new law, Courts no longer have to make findings on every factor – only the factors the Court sees as relevant.
The most important factor has to do with the child’s existing relationship with the biological parent. Under the old law, courts considered whether the relationship between the biological parent and the child was “meaningful.” The trouble is that no one could say precisely what “meaningful” meant. The new law attempts to explain what a “meaningful” relationship really means.
Here are some key differences between the old law and the new law:
-The biological parent’s urgency in acting to get their child back, for example, by establishing parentage or by addressing the circumstances that led to them losing custody in the first place. The old law did not reward parents who fixed the problem immediately. The new one does.
-The biological parent’s consistency in behavior, for example, does the parent only get a clean drug screen right before court, or do they get treatment and maintain sobriety throughout? The old law did not reward consistency. The new one does.
-The quality of visits between the parent and the child. Under the old law, just showing up was enough. Under the new law, courts will examine the impact of the visit on the child. Did the parent engage? Did the child have nightmares afterwards? Were they happy to see each other?
-The safety of the biological parent’s home has always been a factor. But under the new law, the court will consider the child’s reaction in returning home even if a parent’s home is safe.
-Whether the biological parent understands and has the ability and willingness to meet those needs. The efforts of the parent to access resources, including accepting assistance from the Department of Children’s Services, is pivotal.
-Related to the ability to meet the needs of the child is a parent’s experience in raising other children.
-Also related to the ability to meet the child’s needs is for the biological parent to show a commitment to providing financial support. While the child support guidelines don’t have to be met, a parent should show at least an understanding that children cost money and a willingness to support that child financially.
-The relationship between a child and their extended family is extinguished when parental rights are terminated. The new statute requires the Court to consider the impact of losing contact with that extended family on the child.
The biggest factor that has not changed is the need for speed. If you have lost custody of your children, you need to act quickly to obtain a lawyer and get to work to get them home. The longer your case goes, the harder your challenge to access resources becomes and the more your parental relationship erodes.