There are instances in which a parent, during or after a divorce proceeding, reaches a juncture at which he or she must relinquish legal and physical custody rights voluntarily.
In some cases this needs to be done for an indefinite period of time; for example, if a parent is being sent on active military duty, physical custody is impossible to exercise and legal custody is likely impractical.
There are certain steps that must be taken to relinquish on a voluntary basis the right to legal and physical custody of a minor child.
Overview of Legal and Physical Custody
Legal custody represents the right of a parent to make major life decisions for a minor child. These include significant matters such as medical care, education, and religion. Physical custody is the right of a parent to provide a residence to a minor child.
Legal and physical custody can take a different forms. For example, parents can jointly share legal custody of a child. In such a situation, they both participate in making major life decisions for a child.
Physical custody can be vested with one parent who maintains a primary residence for a child. The other parent typically would have the right to parenting time. In some cases, the parents jointly share physical custody of a child, who technically maintains a residence with both parents.
When one parent relinquishes legal and physical custody, the other parent ends up having sole legal and physical custody of a child. The revised custodial arrangement will remain in place until the parents reach a different arrangement or the court enters an order adjusting the scheme.
Free and Voluntary Act
The decision to relinquish custody must be a free and voluntary act. A person cannot be forced to change a custodial arrangement, except by order of the court. In addition, a person must be of sound mind in order to execute an agreement to change custody of a minor child.
Proper Legal Instrument Relinquishing Custody
The parent desiring to relinquish custody must complete and sign a proper legal instrument indicating as much. This is a document that typically is prepared by an experienced attorney.
Because of the gravity of relinquishing custody to a child, legal representation is imperative. A parent must never sign a document ceding his or her right to custody without first consulting with legal counsel. This includes having a lawyer review all documents related to relinquishing custody of a minor child.