Can a non-custodial parent who has not seen their child in 2 years, have a chance of getting the child if something happened to the custodial parent?

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Can a non-custodial parent who has not seen their child in 2 years, have a chance of getting the child if something happened to the custodial parent?

Asked on October 13, 2012 under Family Law, Arkansas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

As long as the non-custodial parent's rights have not been terminated, they actually have a good chance of getting the child if something did happen to the custodial parent.  Whoever has been helping the custodial parent over the last two years is certain to protest, but the Supreme Court of the United States has consistently upheld that the rights of a biological parent are superior to a non-parent.  The exception to this rules is if the parent has done something to forfeit that right.  Often, forfeiture comes in the form of a bad act (like harming the child.)  However, the bad act can also be an omission (like failing to provide any support for an extended period of time without a justifiable excuse).  You don't mention why you haven't seen the child in two years, but to avoid an involuntary termination, you would be better off to do some "reaching out" to the child.  Even if the efforts are rejected by the child or the custodial parent, you at least want to show the courts that it was not your choice to abandon the child.  Things that you can do include:  making sure you pay something on your child support (even if it's not current), sending cards for important events, arrange video chatting if the child is in another state, enforcing your right to visitation or access.  In the modern era of technology, keepinging in touch is a much more practical reality than it used to be. 

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

It is possible that even though you may not have had custody of your child for a couple of years assuming you visited the child and made an effort to be in his or her life that assuming something happened to the custodial parent where he or she could not care for the minor, you should be able to have custody of the child under the laws of all states in this country.


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