Question: If a person is incarcerated, does their spouse have the right to get
a divorce and take away parenting rights?
Question Detail: My husband's ex wife did this to him and my husband and I want to know if she was legally able to do so."
Often, people come to me asking about terminating parental rights or what their rights are. They frequently confuse parental rights with custody. If the above person was incarcerated, his rights likely were not terminated, but rather the mother was granted sole legal and physical custody of the child. Legal custody is decision making authority, while physical custody refers to where the child lives. As long as the child is a minor, then these are subject to modification. The termination of parental rights, on the other hand, is used as a first step towards adoption by another person or persons.
The other common thing asked is if someone can give up their parental rights to terminate their support obligation. The general answer is no. Again, parental rights should only be terminated prior to someone adopting the child, as the State of California believes that the child should have the benefit and financial support of two parents.