How To Get Parental Rights Reinstated

According to the National Conference of State Legislatures, there are approximately 22 states that have provisions in place which allow for parental rights reinstatement after those rights have been terminated. The termination of parental rights, which permanently removes legal access of a parent to their child, is a serious step, not taken lightly by the court. Though deemed rare, this 2019 report shared by the National Library of Medicine suggests that it happens more frequently than many are aware. It has been estimated that around 1 in 100 children in the U.S. will be subjected to the loss of parental rights by the age of 18. And according to Statista, there were 65,000 instances of parental rights termination in the U.S. in 2021.     

Termination of Parental Rights

The Child Welfare Information Gateway defines the termination of parental rights as an end to the legal parent-child relationship. When parental rights have been terminated, a parent is stripped of not only custody of their children, but also the right to visit or contact their children. They will have no authority over any decisions made about their children’s adoption, upbringing, earnings, education, healthcare, or property. Parental rights termination can occur voluntarily, such as when a parent freely relinquishes their rights to their children, allowing those children to be placed up for adoption. In cases of involuntary loss of parental rights, a court of law may decide to remove a parent’s legal rights to their children if they are deemed unfit to care for them. Typically this only happens in extreme cases of long-term abuse, neglect, or abandonment.     

Voluntary

It may seem unfathomable that a person would voluntarily give up their parental rights, but there are many reasons someone may elect to do so. If one or both parents are physically, emotionally, or financially incapable of caring for their child(ren), they may choose to waive their parental rights and place the child(ren) up for adoption or permanent guardianship, in the hopes of finding them a potentially more stable and secure family situation. In some cases, parents are led to believe by outside parties that voluntarily relinquishing their parental rights will give them a better shot at having those rights reinstated at a later date, as opposed to if they have their rights involuntarily removed.  Whether voluntary or involuntary, the rules surrounding the termination of parental rights differ from state to state. The process will not be as easy as just signing some paperwork and walking away. A strict legal process will need to be followed. Once a petition for termination has been filed with the courts, a judge will make the final decision on whether or not rights will be terminated, based on what they deem best for the health and well-being of the child(ren).    

Involuntary

Each state has its own laws surrounding the standard protocol for determining whether or not a person’s parental rights should be terminated. In most cases of involuntary termination a court will need to see clear and convincing evidence that the parent is unfit to provide adequate care for their child(ren). Often these cases involve neglect, abandonment, or long-term abuse. In some circumstances a parent is deemed incapable of caring for their children due to substance dependency, or mental or physical illness. When weighing the evidence during termination proceedings, a judge will also consider the testimony of friends, family, neighbors, and witnesses, both expert and otherwise. In the end, judgment will be based on whatever is in the child(ren)’s best interests. While involuntary termination is meant to be a last resort, statistics surrounding the involuntary termination of parental rights indicate that roughly 1 in 100 children in the U.S. will experience separation from their parents in this manner prior to the age of 18, with the majority of separations occurring within the first few years of life. Statistics further suggest that involuntary termination of parental rights disproportionately affects black, brown, and indigenous families, as well as lower-income families. 

It is important to note that while parental consent is not required for an adoption to take place, it generally cannot take place before parental rights have been terminated, whether voluntarily or involuntarily.    

When Can Parental Rights Be Reinstated?

As previously mentioned, only 22 states currently have legislation allowing for the reinstatement of parental rights once they have been forfeited. In those states, factors such as whether or not rights were terminated voluntarily or involuntarily, the age of the children, whether or not a permanent placement has occurred within a certain timeframe, and if the parents are now deemed fit to care for their children will all be taken into consideration. Though not a guarantee, it is likely that courts will show more favor to parents who voluntarily terminated their parental rights. More specific state to state information can be found here. 

Who Can File a Petition for Reinstatement?

Each of the 22 states that have provisions for the reinstatement of parental rights has their own set of guidelines about who can file, and under what circumstances they may do so. Here are some examples of who may be permitted to file a petition for reinstatement, depending on which state they live in:

• Someone who voluntarily relinquished their parental rights

• A child who is no longer going to be adopted, as determined by the court

• A child’s attorney

• A child’s guardian ad litem

• A county department of social services

• A child welfare department

• A child in foster care over the age of 15 (in some cases, over the age of 12)

• The Department of Health and Human Services

• The legal custodian or guardian of the child

What Factors Influence the Decision?

Just as the decision to terminate a parent’s rights to their children is a grave one, so too is the decision to reinstate their rights after the fact. While the likelihood of having these rights reinstated is not always favorable, it is not impossible. Here are some of the factors that will be taken into consideration by a judge when considering such a request:

• How much time has passed since rights were relinquished?

• How old is the child, and how mature are they? (Are they adequately able to state their preference in the matter?)

• If they are an older child, what are their chances of finding permanent placement in another home before aging out of the foster care system?

• Current mental and physical fitness of the parents. (Have previous hindrances been rectified?)

• Will reinstatement place the child’s health or safety at risk? 

• Is there clear and convincing evidence (or a preponderance of evidence) of improvement on the part of the parent? 

Ultimately, for a judge to reinstate parental rights, they will need to be confident that doing so is in the best interest of the child. 

How To Get Your Parental Rights Reinstated

File a Petition

No matter which state you live in, the first step toward getting your parental rights reinstated is to file a petition with the same family, juvenile, or probate court that originally terminated your rights. Your lawyer should be able to help you with this process. 

Make Copies

Once your petition has been filed, you will need to make sure that all involved parties receive a copy of the petition. Aside from the court, this may include your child, their attorney, child protective services, current foster parents, etc. Again, your attorney will be able to help you with the correct legal process when it comes to serving copies of your petition to the appropriate parties.

Determine the Permanent Status of Your Child

Before reinstatement will be considered, you will likely need to prove that another permanent home has not already been found for the child. If they have not been adopted or assigned a legal guardian, and if there is no chance of such a permanent placement on the horizon, conditions for reinstatement will be more favorable. Get assurances in writing from whichever child welfare department has been handling their case that no other permanent placement has been or is being arranged. 

Court Assessment

After the petition has been filed, the court should hold a hearing in which they weigh all the evidence presented to determine your fitness to resume care of your child. As before, they will rely on testimony from witnesses, both expert and otherwise. In some cases they may authorize temporary guardianship in order to evaluate your parental capabilities on a conditional basis. Or they may assign a Guardian ad Litem to monitor your current circumstances and determine if you are now fit to have your parental rights reinstated, always keeping the child’s best interests in mind when making their assessments and recommendations. 

Reinstatement

If the court determines that you have made the appropriate life improvements and that you are fit to be permanently and legally reunited with your child, they will issue their final order accordingly. Depending on which state you are in, you may be reunited immediately, or you may be required to undergo a court approved transitional plan for full reinstatement of your rights. If the latter, you should be able to rely on state social service departments for help with the transition process. 

Questions To Ask a Family Lawyer for Parental Rights Reinstatement

Don’t go through the process of seeking reinstatement by yourself. There are so many qualified family lawyers who can help you get the outcome you desire. If you don’t already have a family attorney, you may find one who is willing to do an up front consultation, free of charge. When it comes to finding the perfect attorney to fight for you, here are some questions you’ll want to cover upon initially meeting them:

• What is your fee structure?

• What do your attorney fees cover?

• Do I live in a state that allows reinstatement of parental rights?

• If so, what are the state guidelines/requirements for reinstatement?

• Does it matter if my parental rights were terminated voluntarily or involuntarily?

• Who is eligible to petition for reinstatement? 

• What are the next steps?

How To Find a Good Family Lawyer

The pain of being legally separated from your children, whether by choice or by decree, has lasting traumatic impacts on parents and children alike. If you are wondering how to get your parental rights reinstated, the best first course of action is to speak with one of the qualified, caring, and capable family attorneys found on our website. Let their knowledge and expertise of your state’s laws guide you through this emotional and difficult process.