Written by attorney Philip Richard Yabut

Loss of Child Custody vs. Termination of Parental Rights


The purpose of this guide is to clear the confusion between two commonly misunderstood legal terms: loss of child custody and termination of parental rights. These two concepts are commonly mistaken for one another, and they have two very different outcomes.

Loss of Child Custody

In a nutshell, loss of custody does not affect the legal relationship between you and your child, only the living arrangements. If you lose custody of your child, you no longer have the right to have your child live with you. Furthermore, you may lose the ability to make decisions as to your child’s daily care. However, you still have the right to ask for visitation. You also maintain the right to challenge or change the custody determination at a later date. Legally, you still have a say in influencing your child’s values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise. And, most importantly, you maintain responsibility to support your child financially (that is, you are not excused from paying child support!).

In Virginia, either parent can petition to change child custody, and it will be granted if they can show a judge that there is a sufficient change in circumstances to warrant a modification. These orders are final, but only to the extent that they too can be modified if another change in circumstances occurs.

Termination of Parental Rights

On the other hand, if your parental rights are terminated, you are completely cut off from your child, both physically and legally. You would have no right to have any say in the child's daily care or upbringing, all inheritance rights are eliminated, and you would have no right or ability to even contact the child without consent of the child's adoptive parents. This decree also removes the responsibility of the terminated parent to pay child support. A parent cannot "sign over" his or her parental rights voluntarily except in adoption cases.

In termination cases, there must be another adult available to take the place of the terminated parent before a court will even consider taking such a drastic step, which is generally what happens in stepparent and third party adoptions. The parent(s) who stand to lose parental rights must consent in these situations. Involuntary termination, on the other hand, can only be sought by the Department of Child Protective Services in cases of abuse and neglect. And unlike child custody orders, these orders cannot be reversed or changed -- they are permanent.

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