Can You File for Custody If Your Parental Rights Were Terminated in Virginia?
If your parental rights to a child have been terminated, under Virginia law you do not have standing to file a petition for custody of that child. Under Virginia Code Section 20-124.1, a petitioner seeking custody of a child must be a “person with a legitimate interest.” The statute specifically provides that a person with a legitimate interest does not include a party whose parental rights have been terminated by a court order, either voluntarily or involuntarily. However, in 2013, the General Assembly enacted Virginia Code Section 16.1-283.2 to provide a procedure for restoration of parental rights. Once a parent’s parental rights are restored pursuant to that code section, he or she can file a petition for custody.
Who Can Petition for Restoration of Parental Rights?
The statute distinguishes as to who can petition the court based on the age of the child involved.
If the child is 14 years of age or older and in the custody of the local department of social services, and a pre-adoptive parent or parents have not been identified and approved, under Section 16.1-283.2 the child’s guardian ad litem or the local board of social services can file a petition for restoration of parental rights if: (a) the parent and child both consent to the restoration, (b) the child was previously adjudicated to be an abused or neglected child, child in need of services, child in need of supervision, or delinquent child; (c) the child has not achieved the permanency goal or the goal was achieved but not sustained, and (d) the parent’s rights were terminated at least two years before the filing of the petition to restore parental rights.*[*The court may accept a petition filed before the expiration of the two-year period following termination of parental rights if the child will turn 18 before the expiration of the two-year period, and the court finds that accepting such a petition is in the best interest of the child.]
If the child is younger than 14 years of age, a petition to restore parental rights can be filed (a) jointly by the child’s guardian ad litem and the local department of social services or (b) if the child is the sibling of a child for whom a petition for restoration of parental rights has been filed and the child who is younger than 14 meets all the criteria for restoration of parental rights for a child age 14 or older.
What is the Process for Restoration of Parental Rights?
Once a petition to restore parental rights is filed with the court, the court is required to hold a hearing. At this hearing the parent who is asking the court for a restoration of parental rights must prove by “clear and convincing evidence” their ability to care for the child. If the court grants the petition, the court may require involvement by the department of social services to evaluate and monitor the relationship between the child and the parent. Social services are required to submit a written report to the court describing their findings.
After approximately six months from the time the child is placed with the parent, the court must set a second hearing at which point the court will determine whether to make restoration permanent. As part of this determination, the court may consider the written report submitted by social services. If upon consideration of the report, the court finds by clear and convincing evidence that the restoration of parental rights is in the child’s best interest, the court must enter an order restoring parental rights. The court must consider the following factors when making its determination as to the best interest of the child:
- Whether the parent whose rights are to be reinstated agrees to the reinstatement and has substantially remedied the conditions that led to or required continuation of the child’s foster care placement;
- The age and maturity of the child and whether the child consents to the reinstatement of the former parent’s rights, if the child is 14 years of age or older, or the child’s preference with regard to the reinstatement of the former parent’s rights, if the child is younger than 14 years of age;
- Whether the restoration of parental rights will present a risk to the child’s life, health, or development;
- Whether the restoration of parental rights will affect benefits available to the child; and
- Other material changes in circumstances, if any, that warrant the granting of the petition.
It is important to note that because it is still a new statute, Section 16.1-283.2 is still evolving and is subject to numerous interpretations.
If you had your parental rights terminated and you wish to regain those rights, be sure to discuss your options with an experienced family law attorney. Livesay & Myers, P.C. has teams of experienced family lawyers in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia. Contact us to schedule a consultation today.