Full question:
My son will be six years old on February 25, 2010. I was with his father for the first seventeen months of his life. I had his father legally evicted from my home because he refused to leave. He moved out on or about July 12, 2005. He called one time the following week. I have not heard anything from him since that last phone call in July 2005. I do not receive child support and have never asked for child support. On the birth certificate for father it states 'not listed and my son has my last name (maiden). My son has not spoken or seen his father since July 2005 when he was eighteen months old. During these years, I have lived at the same address, worked at the same company and I have had the same mobile number. He has made no attempt to contact me and I have made no attempt to contact him. I am unmarried. Both of my parents have passed away. I have one brother. If I died today, would my son's father be able to get custody of my son? Would a will stating who I wanted my son to live with in the case of my death protect him from his father gaining custody?
- Category: Divorce
- Subcategory: Child Custody
- Date:
- State: South Carolina
Answer:
Typically, a parent's rights are not automatically terminated due to a lack of contact. Therefore, if one parent dies, the other parent generally has the right to care for the child if they are able. A will cannot change the parental rights of the other parent.
Since abandonment can be a factor in custody decisions, you might consider pursuing a termination of parental rights (TPR) for the father. A TPR proceeding legally ends the relationship between the parent and child, which includes all rights and obligations except for the child's right to inherit. This means the parent would not have any legal rights to visitation or information about the child once their rights are terminated.
In South Carolina, interested parties, including parents, can file for TPR (S.C. Code Ann. § 20-7-1564). The court must find clear and convincing evidence for termination and determine if it is in the child's best interest. Even if a parent has not been involved for a long time, the court has discretion and may not always terminate rights, even with evidence of abandonment (Dorn v. Criddle, 410 S.E.2d 590).
If the father's rights are terminated, you would be the sole custodian, allowing your will to designate a guardian for your son upon your death.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.