Especially when child support is pending, some people mistakenly think they can avoid paying support, or avoid the other parent seeking visitation, if one parent surrenders parental rights. Because parents have legal duties to their children, and because various rights as next of kin flow from parents, there are very few occasions when “giving up” parental rights is legally possible. Courts are extremely hesitant to legally erase a parent from a child’s life unless there is another adult stepping up to legally assume that role. Making sure the parent is in fact the parent (maternity and/or paternity and/or legitimation) is a legal determination, and this article assumes these designations have been made.
Duties and Rights of Parents
Parents naturally have constitutionally protected rights to the care and custody of their children. So long as they meet their basic responsibilities as parents, the state has little say about their parenting so long as the children are adequately cared for and safe. Parents have a legal obligation to support children or pay child support but there are other legal benefits to which children are entitled. Children, both natural and adopted, have rights such as social security death benefits, military benefits rights, and legal claims for wrongful death of parents in appropriate cases, and inheritance rights, to name a few. Children have legal benefits from a parent even if that parent fails to pay child support or is a parent in name only.
How Are Rights Given Up?
Choosing not to pursue visitation with your child is quite different from surrendering your legal rights as a parent. One example of surrendering parental rights is found in North Carolina’s safe surrender laws, for infants seven days old or younger. Parents who would otherwise abandon an infant are given legal protection from criminal prosecution if they leave the infant with an appropriate agency or individual, such as a social worker, law enforcement officer, or an emergency medical service worker. NC Gen. Stat. 7B-500 et seq.
A parent can give legal consent to allow the NC Department of Social Services (DSS) to facilitate an adoption by a step-parent if the other parent has remarried and he or she desires to adopt, or adoption by a third-party. The state then assigns new parents who legally assume the rights and duties of parents. If only one parent consents to an adoption, it becomes a complicated legal matter beyond the scope of this article.
When a parent is unable or unwilling to appropriately parent a child, DSS will independently initiate legal proceedings to protect a child. When DSS becomes the legal custodian of a child, parents are typically given access to resources to assist them, such as substance abuse treatment. If the assistance is not accepted or the parents cannot or will not parent the child, the state (or a third-party) may initiate legal action called “termination of parental rights.” If the parental rights are terminated, DSS will often clear the child for adoption.