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Determining Parental Unfitness


The policy of the courts in the State of Nevada is to make all custody determinations based upon the best interests of the child or children concerned in a specific case. While state policy suggests a preference for both parents to remain in a child’s life, if it is deemed to be necessary in order to preserve a child’s physical, mental, or emotional health, a court may take steps toward terminating parental rights. If you are facing this possibility, it is critical to understand your options.

Should Termination of Rights Be Granted?

Nevada law establishes a two-part test to determine whether any request to terminate parental rights should be approved. The first part is to ask whether the child’s best interest would truly be served by terminating parental rights, while the second is to ask if the parent is at fault enough, or has shown they lack the ability to adequately care for the child, so that terminating would be appropriate. In other words, Nevada courts will only go through with the termination of someone’s parental rights if a parent is unfit, and if the termination would serve the child better than allowing that parent to remain in the child’s life.

A court will examine multiple factors before making the decision to terminate. Generally, the court will order termination of a person’s parental rights if they find that one or more actions have occurred: abandonment or neglect of the child, general unfitness, risk of serious physical, mental or emotional injury if the child is returned to (or allowed to) to spend time with the parent, or when only “token efforts” are made by the parent to have a relationship with the child – in other words, the bare minimum effort to avoid committing neglect or abandonment.

Possible Extenuating Circumstances

While courts will primarily act in the best interests of the child when debating whether or not to terminate parental rights, it is worth noting that Nevada law does allow the court to entertain certain extenuating factors that may or may not change the narrative. For example, if the non-custodial parent is in danger of having their parental rights terminated, the court should consider whether or not the non-custodial parent has received any services aiding them to be a better parent, such as substance abuse counseling, as well as the degree of effort put into facilitating a relationship between the parent and child. A court is more likely to err on the side of caution and not terminate parental rights if a person has made a concerted effort to keep a visitation schedule, or has put significant effort into bettering their situation so that they are stable enough to keep their children in their life.

While extenuating circumstances may affect the determination for the better, they may also affect it for the worse. NRS 128.109 deals with situations in which a child, who has been removed from a parent’s care by the state, has resided outside their home for 14 or more of the last 20 months. If this is the case for your child, that creates a presumption that the child’s parents have only made token efforts to care for that child, which in turn creates a potential basis for a ruling of unfitness. You will be given a chance to correct the issue, but if progress is not sufficient in the time given, parental rights will usually then be terminated.

Enlist an Attorney to Help Today

The potential to lose one’s children can frighten many people. If you are in danger of having your parental rights terminated, all may not be lost. The attorneys at the Kainen Law Group will work hard to try and arrive at a solution that suits everyone involved. Call the office today to set up a consultation.


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