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  1. #1
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    Unhappy Termination of Parental Rights of Biological Father Due to Long Incarceration

    My question involves a child custody case from the State of: New York

    My daughters' biological father has spent 6 1/2 years in prison. She is now nearly 7 and has never met him. I think it is best that she doesn't as he has a long history of lengthy prison sentences (robberies) and drug addiction. He was also violent with me while I was pregnant but I have little to prove that in court. He is scheduled for release in 2 years and has shown a sudden recent interest through letters (which I have not responded to). Although we have no financial resources, I have managed so far to provide her a stable and healthy life. I am very afraid of the effects he could have both physically and mentally on our life...my hope is that a judge might grant terminating his parental rights based on abandonment? (followed by an order of protection and name change). Is this likely?

  2. #2
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    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Has he been legally established as father?

    Are there any court orders in place?

  3. #3
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    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    No, he is un-named on the birth certificate, all paperwork is strictly my name as parent. He has not YET filed for paternity or anything else, but by the tone of his letters i suspect he might be preparing to do so from prison. I have never filed anything in hopes that he would leave us alone. In fact, I have not spoken with or communicated with him in at least 5 years. I have also never requested child support.

  4. #4
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    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Speak with an attorney. In most states, paternity needs to be established before parental rights can be terminated.

  5. #5
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    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Yes, I assume paternity would have to be established first but there is no question there. My goal with termination of parental rights (after establishing paternity of course) is to be able to protect my daughter from the mental upset of potentially having to meet this man that she doesn't know, forced visitations, drama and trauma etc. I want the security of knowing i can keep her in her current community and school without her world being turned upside down by his sudden appearance at 8 years of age. I highly doubt he will stay off drugs or out of prison for more than a year or two. (He has spent 17 of the last 25 years in prison and i suspect i can find more records if i keep looking.) He also has a history of domestic violence but I can't prove that in court. I want to know I can eliminate his potential to tear her life up...either that or I need to leave the country while we still can.

    Is his track record grounds for termination?

  6. #6

    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Quote Quoting nonismom
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    I want the security of knowing i can keep her in her current community and school without her world being turned upside down by his sudden appearance at 8 years of age.
    Even if he suddenly appeared, established himself as the father, and was granted visitation, it wouldn't have any impact on keeping her in her current community. Courts don't just send children off with people they don't know. If ANY visitation would be granted, you can be assured that it would be supervised - even if he DIDN'T have a criminal history.

    I highly doubt he will stay off drugs or out of prison for more than a year or two. (He has spent 17 of the last 25 years in prison and i suspect i can find more records if i keep looking.)
    So if the child is 7 now, that means that he already HAD a ten year or more prison history when you had the child with him. That's not going to help your arguement to the court that you're worried about him NOW after more prison time, especially if the offenses were similar. Realistically....if his convictions weren't for VIOLENT crimes, and he takes the steps to establish paternity, he's got a CHANCE of being awarded at least supervised visitation.

    He also has a history of domestic violence but I can't prove that in court.
    Exactly why advocates jump up and down and scream from the tops of their lungs that domestic violence needs to be reported. Bringing it up years after the fact, when it was never reported, means the court isn't going to consider it. You don't have to PROVE the violence, but if it was never even reported, it won't be an issue for the court.


    I want to know I can eliminate his potential to tear her life up
    The only 100% way for that to happen is no longer an option, since the deed was already done and the child is already on the scene. IF dad should begin the process to establish himself as the father (or if YOU start the process), you'll want the services of a family law attorney to argue your point to the court that it's in the child's best interest to have no contact with her father (a drug history and even prison time, in and of themselves will NOT be an automatic bar to him successfully seeking supervised visitation).

    Is his track record grounds for termination?
    That you found him fit to make the child with when he already had a criminal history will be a burden that will need to be overcome. Remember that courts hold that it's in a child's best interest to have TWO parents - unless such contact can CLEARLY be proven to be detrimental to the child. Track record that was already in existence prior to the baby-making, which the court regards as your stamp of approval, won't have nearly as much impact as criminal activity occurring AFTER. That he has a prison record may help your case, but is likely to be heavily dependent on the nature of the offenses. If he beings proceedings to establish paternity, you'll want to retain counsel.

  7. #7
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    Unhappy Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Aardvark - thank you so much for your time and for addressing the many factors involved here. I'm going to respond to your many points as attempting to terminate his parental rights could have unwanted effects that caused more damage - especially if it failed.

    Quote Quoting aardvarc
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    Even if he suddenly appeared, established himself as the father, and was granted visitation, it wouldn't have any impact on keeping her in her current community. Courts don't just send children off with people they don't know. If ANY visitation would be granted, you can be assured that it would be supervised - even if he DIDN'T have a criminal history.
    It is some comfort to know that you think the MOST he would be granted is supervised visitation. Unfortunately the supervised visitation in our area is in a very bad neighborhood and my understanding is that the supervision does not prevent things like whispered conversation. I dread to imagine what he might conjure up and tell her at age 8. So far she has lead a very stable and safe life, with my goal being to keep the innocence of childhood as intact as possible and give her a 'normal' life of things like ballet, Girl Scouts and neighborhood playdates.

    The impact his sudden involvement would have on keeping her in her community is that I would consider, as a last resort: hiding here and living in an undocumented fashion, OR moving/fleeing to another state or country while we still have that option. I realize that this would have potentially detrimental effects on my daughter but I have to weigh that against being forced involvement with a man she hasn't met who has a great likelihood of being harmful mentally and physically. (more detail later) Again, an extreme and last resort option but one I should consider while we still have the option available.

    If and when he petitions to establish paternity, is leaving the area no longer a legal option? Or does that option disappear at the point AFTER he establishes paternity and is filing for visitation?



    Quote Quoting aardvarc
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    So if the child is 7 now, that means that he already HAD a ten year or more prison history when you had the child with him. That's not going to help your arguement to the court that you're worried about him NOW after more prison time, especially if the offenses were similar. Realistically....if his convictions weren't for VIOLENT crimes, and he takes the steps to establish paternity, he's got a CHANCE of being awarded at least supervised visitation.
    Yes, he already had a record. I met him in A.A., an environment where most people have a past and are trying to rebuild. Poor choice on my part, absolutely. At the time he presented as a man in recovery with a career as an electrician, very clean-cut and very bright. Bottom line - I rebuilt and stayed clean, he relapsed and returned to his previous life. But his history and lifestyle were far darker than mine ever were (I have no criminal record or documented history of alcohol or drug use). His convictions that I have since found online are primarily burglaries and armed robbery. There are 6 felonies I have found so far. I am still digging.

    I was not aware of the EXTENT of his criminal records or his potential for violence until after my daughter was conceived. I should add that I was not trying to become pregnant, her conception was literally a one-time lack of sexual responsibility on my part. It truly does only take once. I am painfully aware that I was an irresponsible idiot.

    The magnitude and guilt I carry for putting a child in this position weigh heavy on me everyday. That said, my job now is to do everything possible in damage control and continuing to provide her as safe and stable a life as possible.



    Quote Quoting aardvarc
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    Exactly why advocates jump up and down and scream from the tops of their lungs that domestic violence needs to be reported. Bringing it up years after the fact, when it was never reported, means the court isn't going to consider it. You don't have to PROVE the violence, but if it was never even reported, it won't be an issue for the court.
    I am grateful to those advocates that jump up and down, it is needed. The reports have to be made but they also have to be RECEIVED. Events were reported to police but I was not able to bring any charges. Sadly in this day and age it is still not that easy for a domestic violence victim to defend themselves legally until there is serious bodily injury. The police repeatedly informed me that although they respond to domestic disturbances, unless there is proof of injury it is not a criminal matter. There may, at best, be blotter reports of my calls. It was repeatedly a 'he said/she said' situation.

    He never lived with me - ever. We dated. During my pregnancy he relapsed on drugs and became violent. His violence was not in the context of a partner squabble but because I asked him to leave and/or refused to let him into my apartment because he was using drugs.

    He pulled hair and threw me across the room. He swung a hammer at my head, chased me downstairs in my apartment building, reappeared at other dates slashing tires, pushing in doors and shouting outside and throwing heavy objects at the window. There also was verbal humiliation in the form of him following me and addressing shopkeepers, etc. with crude comments about me. I considered but did not pursue an order of protection as I feared it would only anger and fuel him further. My thinking is that an order of protection is only a piece of paper to someone who has nothing to lose and does not fear the law.

    Also, at one time in her infancy he anonymously reported me to CPS with extreme charges. The case was closed as unfounded as the charges were easily proven to be false but it was a form of torment because I wouldn't answer his calls. He knows the system much better than I ever will.

    At best, my proof would be police blotter reports (MAYBE), possible testimony by neighbors-friends, and one hospital visit during pregnancy when I jumped down the stairs to get away and thought I had torn abdominal muscles. I also saw a therapist in years following and he would certainly have records - not sure that any of this 'proves' anything but that's all I've got.

    Quote Quoting aardvarc
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    ...(a drug history and even prison time, in and of themselves will NOT be an automatic bar to him successfully seeking supervised visitation)...
    Thank you. I wish the answer were different but I have to work with the facts, don't I?
    Your answer is frustrating and hard to morally accept but answers my biggest legal question.

    Quote Quoting aardvarc
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    That you found him fit to make the child with when he already had a criminal history will be a burden that will need to be overcome. Remember that courts hold that it's in a child's best interest to have TWO parents - unless such contact can CLEARLY be proven to be detrimental to the child. Track record that was already in existence prior to the baby-making, which the court regards as your stamp of approval, won't have nearly as much impact as criminal activity occurring AFTER. That he has a prison record may help your case, but is likely to be heavily dependent on the nature of the offenses. If he beings proceedings to establish paternity, you'll want to retain counsel.
    Thanks again for your time and knowledge. I know I need an experienced Family Attorney. I worry that I will be counseled to pursue a legal avenue that will cause us more harm than good, only to line someone's pockets.

    Knowing more details of my story, do you think the average family court judge in NY will see this as a situation where a prisoner can gain assimilation into a family and a child gain a father OR a situation where child and mother may need protecting and the biological father has potential to be detrimental to the child?

    Will termination of his parental rights be unlikely, and me only opening the door for him to gain visitation? (Should I be packing our suitcases and getting passports instead?)

  8. #8
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    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    nonismom, I can certainly emapthize with your fear. But I would like to ask you a question. Perhaps looking at this situation a little differntly may help. What if you stopped fighting his interest in seeing his child? I know that sounds like the end of the world to you, but please consider for a moment that the past abuse you have shared seems to indicate that this guy fixates on the things that he is denied. If you didn't withhold his daughter from him, would he still have the same level of interest?

    And, if he were to establish paternity and then visitation rights, that would also carry with it child support. I find it highly unlikely that he would remain current on that, so there is a good chance that he would go back to jail for that. Assuming, of course that he doesn't go back to jail for yet another crime.

    However, since he has been convicted of armed robbery, that may met the standard for a violent crime and make all of your worries moot. I'd like to think that a judge would terminate a parents rights based upon that conviction, but I'm afraid I don't know for certain. Have your tried obtaining a free or low cost consult with an attorney to get a better gauge of your options?

    Also, have you tried returning his unopened letters to him?

    P.S. If you're going to move, you would need to do it before any legal actions are initiated. But you really should discuss that, and every other option with an attorney first. Disappearing could open up another can of worms all together; one that might have a terrible backlash against you and your daughter.

  9. #9

    Default Re: Termination of Parental Rights of Biological Father Due to Long Incarceration

    Quote Quoting nonismom
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    Unfortunately the supervised visitation in our area is in a very bad neighborhood and my understanding is that the supervision does not prevent things like whispered conversation. I dread to imagine what he might conjure up and tell her at age 8. So far she has lead a very stable and safe life, with my goal being to keep the innocence of childhood as intact as possible and give her a 'normal' life of things like ballet, Girl Scouts and neighborhood playdates.
    The logistics of the supervised visitation can absolutely be negotiated. It doesn't HAVE to be at any specific location or center, and there is also leeway in WHO does the supervising. It could be a social worker attached to the program, or it could be a trusted friend or family member. If he should actually GET supervised visitation, you'll be able to give considerable input as to those logistics. Even WITH supervised visitation, ballet, Girl Scouts, and neighborhood playdates need not be meaningfully impacted. (A Guardian ad litem - a special attorney appointed by the courts to look after the best interests of the child, might even mingle Girl Scouts with visitation and kill two birds with one stone.) Those will be bridges that can be crossed IF visitation is actually awarded, and you'll have support in working through those issues to keep IN as many positives, and OUT as many negatives for the child.

    The impact his sudden involvement would have on keeping her in her community is that I would consider, as a last resort: hiding here and living in an undocumented fashion, OR moving/fleeing to another state or country while we still have that option. I realize that this would have potentially detrimental effects on my daughter but I have to weigh that against being forced involvement with a man she hasn't met who has a great likelihood of being harmful mentally and physically. (more detail later) Again, an extreme and last resort option but one I should consider while we still have the option available.
    Sometimes you have to do what you feel you have to do. You know this guy better than anyone else, and I understand the futility in trying to convince you that him playing some part in your daughter's life can be a positive thing for the child. I only ask, before you take the drastic step of making your child a fugitive, that you consider that (a) people can change, that (b) sometimes having oneself evaluated by a child can have a sobering effect on people who formerally led lives of reckless abandon, particularlly when allowed to acclimate to the idea in a supervised situation, and (c) that eventually the child will hold you accountable for not knowing their father, regardless of the reasons.

    If and when he petitions to establish paternity, is leaving the area no longer a legal option? Or does that option disappear at the point AFTER he establishes paternity and is filing for visitation?
    Once he files, you may be ordered to stay. If dad is spending his incarcerated time educating himself about such things, it's also possible that he can notify the Secretary of State such that the child won't be issued a passport or be allowed to leave the country. It's not the leaving that is the problem, obviously you can drive or get off a plane anywhere.... it is being allowed to ENTER another country without documentation that will become the issue.


    His convictions that I have since found online are primarily burglaries and armed robbery. There are 6 felonies I have found so far. I am still digging.
    The robberies will work against him, but again, in and of themselves don't present an absolute bar - particularly to supervised visitation.

    I am grateful to those advocates that jump up and down, it is needed. The reports have to be made but they also have to be RECEIVED. Events were reported to police but I was not able to bring any charges.
    The state, not the victim, brings charges. So while an actual case against him would have been HELPFUL, just the fact that the incident was REPORTED can be helpful to your case. Somewhere in police records is documentation of that/those incident(s). There will be dates, times, who called, what they told police happened, etc. He said/she said is common - but courts really do "get it" that people don't call the police in the first place just because they want the company. Get whatever documentation - even if just dates and times - that you can.


    I considered but did not pursue an order of protection as I feared it would only anger and fuel him further. My thinking is that an order of protection is only a piece of paper to someone who has nothing to lose and does not fear the law.
    True - it IS only a piece of paper. That's why they need to go hand in hand with a comprehensive safety plan. The type that advocates in both police agencies (for those agencies with advocates on staff), non-profit organizations, domestic violence shelters, and others are trained to assist with. The downside of NOT having that piece of paper is that (a) it limits what law enforcement and the courts can do, and (b) it leaves a gaping hole when trying to convince a court after the fact of the history of the problem.

    Also, at one time in her infancy he anonymously reported me to CPS with extreme charges. The case was closed as unfounded as the charges were easily proven to be false but it was a form of torment because I wouldn't answer his calls. He knows the system much better than I ever will.
    There's nothing he knows that you can't find out. Through all of this have you EVER contacted your local domestic violence program? Attended a support group? Gotten some one on one help with the issues over time? None of what you describe here is unusual - in fact it's pretty common - both the problems AND the potential solutions or strategies to mitigate danger, etc.

    At best, my proof would be police blotter reports (MAYBE), possible testimony by neighbors-friends, and one hospital visit during pregnancy when I jumped down the stairs to get away and thought I had torn abdominal muscles. I also saw a therapist in years following and he would certainly have records - not sure that any of this 'proves' anything but that's all I've got.
    But it DOES prove that you sought assistance - and that'll make common sense to the court - they really DO understand that the OUTCOME of such seeking often falls short - but the call to police, witnesses, and years of therapy are things that a court would EXPECT to see, and the fact that those elements are all present can be very persuasive in convincing the court that yours isn't just a case of pointing a finger at the guy without basis.

    Thank you. I wish the answer were different but I have to work with the facts, don't I? Your answer is frustrating and hard to morally accept but answers my biggest legal question.
    Yes, at the end of the day, supervised visitation is POSSIBLE. Probable? Don't know. Dependent on too many facts, including ones you won't have access to, such as any counseling he attended in prison, his behavior while there, etc.


    Thanks again for your time and knowledge. I know I need an experienced Family Attorney. I worry that I will be counseled to pursue a legal avenue that will cause us more harm than good, only to line someone's pockets.
    The nice thing about counsel is that you can absolutely choose NOT to take any advice given. Start by contacting your local domestic violence program. Explain that dad is getting out of prison and you have some serious legal issues. Ask if they work with a local Legal Aid Society, Law School, or if they have an attorney on staff who can provide you with some guidance (they'll refer you to someone with understanding of the dynamics of abuse and custody issues, which are important considerations in your case).

    Knowing more details of my story, do you think the average family court judge in NY will see this as a situation where a prisoner can gain assimilation into a family and a child gain a father OR a situation where child and mother may need protecting and the biological father has potential to be detrimental to the child?
    In all candor - no, the court isn't going to expect "family assimilation". However, it WILL consider supervised visitation, knowing that he'll also have parole requirements, and with full intent that any further anti-social behaviors could be the nail in the coffin of the possibility of getting to know his child, as well as having the potential to send him right back to the pokey. In other words, once he's served his time, he'll get a closely monitored second chance, and should he screw THAT up, even just by a little thing like not reporting on time, gives you the final bullet to get the court's blessing to terminate rights.

    Will termination of his parental rights be unlikely, and me only opening the door for him to gain visitation? (Should I be packing our suitcases and getting passports instead?)
    It'll depend on the judge. If he completes his sentence, his prison record indicates positive behavior, he continues to try to improve himself by gaining employment, following any terms of parole, continuing counseling for the addition issue (which the court can absolutely order as a pre-requesite for visitation), and otherwise shows positive behavior of attempting to becomes a productive member of society, then he may have an above-average chance of getting supervised visitation. If he gets out and starts acting like an ass, harasses you (OTHER than filing a paternity suit), then he's setting himself up for several good gavel poundings by the judge...not only to potentially incarcerate him again, but also to once and for all put an end to his potential father role (which would of course mean you'd have to file to terminate so the court could approve it, but you get the point).

    The absolute best opinion on likely outcomes is going to come from an attorney who actually practices in your local courts. They will have the best finger on the pulse of the court in general, and of the various judges and their histories of dealing with cases with similar facts. Many will offer an initial consultation for free. Start with your local DV program, and get some referrals. Then make some appointments, bring copies of this post, and get the input and opinion of those who may potentially argue your case for termination to the court. If 3 or 4 local attorneys are telling you the same thing, that should at least put you on some solid ground from which to operate as far as strategy going forward.

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