Q:
My ex has only seen our son a few times over the past six years, which is fine by me because he’s a bad influence. He’s also way behind on child support, which is fine. I don’t need his money - I can support my son by myself. My ex says he wants to give up his parental rights, in exchange for me dropping support. Can we do this? I’d be more comfortable knowing my son won’t be taken away if his father suddenly decides he wants custody in the future.

Kristina

A:

A parent cannot simply give up their parental rights to avoid paying child support or to solve visitation or custody disputes. Only the court can terminate parental rights. Termination of parental rights is a court order that permanently severs the legal parent-child relationship. This type of order is most commonly made:

1. In cases where the court finds the parents unfit because of abuse, neglect or abandonment, or because of the parent’s mental or physical incapacity.

2. In cases of adoption where the parental rights of one or both parents are terminated so that new parents may acquire those rights.

Parental rights can be terminated in other situations, but those are much less common. The court can only terminate the parental rights if it is in the child’s best interests. Termination is not usually in the child’s best interests, because terminating parental rights also terminates parental responsibilities such as child support. Although a parent may not be currently paying child support, as long as parental rights are intact, the legal obligation remains (Family Code 3900 et seq). The custodial parent or Department of Child Support Services can pursue a support order at any time. This is a financial safety net for the child. Unless the continuation of parental rights is a detriment to the child, the court is unlikely to eliminate the potential for future support.

Arrangements such as the one your ex suggested are prohibited by California law. Numerous courts have ruled that parents cannot agree to terminate a minor’s right to support (for example, see County of Shasta v. Caruthers, 31 Cal.App.4th 1838, and County of Orange v. Smith, 96 Cal.App.4th 955).

Courts have also ruled that parents may not ask the court to approve an agreement to terminate parental rights simply to guarantee that contact with the child and support obligations are both prevented in the future. In Kristine M. v. David P., 135 Cal App 4th 783, the court denied this type of motion, because “Public policy intervenes to protect the child's continued right to support. A judgment so terminating parental rights and the attendant obligation to support the child is void as a breach of public policy and as an act in excess of the court's jurisdiction.”

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