It didn’t work out with your child’s father but you’ve found love – and stability – and you’re hoping this means that things will change for your child(ren), too. You wonder, “Can my new partner adopt my child? What would that look like?”
Assuming, of course, that your new partner is on board with this plan, you’d be wise to start talking to a family law attorney about stepparent adoption.
If your child’s father has passed away, it won’t be too difficult. Similarly, if he’s willing to sign away his parental rights, the adoption could move forward relatively easily.
Will my child’s biological father still have to pay child support?
No. If your child’s father relinquishes his parental rights, he’ll have no further responsibility towards the child. He won’t have parenting time, he can’t petition the court for custody, and he won’t be responsible for paying child support.
Your child’s legal father would be his or her new stepparent/adoptive parent. If you and your current partner split up, that parent – as the adoptive parent – would have an interest in child custody and visitation as well as, potentially, an obligation to pay child support.
Will my child’s biological father still be able to participate in joint decision making for the child?
No. If your child’s father relinquishes his parental rights, he’ll have no ability to make decisions on behalf of the child. You could consult him, if you wanted, but you’d be under no legal obligation to respect his wishes.
In Virginia, we have legal custody and physical custody. Legal custody refers to the right of parents to make three types of decisions on behalf of the child: (1) non emergency medical care, religious upbringing, and education. Physical custody refers to where the child spends his or her time. Unless you and your child’s adoptive/stepparent separate, this is unlikely to be a factor, since you’d both have physical custody within the confines of your own home. For your general information, though, physical custody can be awarded primarily to one parent, shared between both parents (though that isn’t necessarily the same as 50/50 child custody), or split (with two different children having two different custodial schedules).
You and your child’s adoptive/stepparent would be responsible for making those decisions.
What if my child’s father doesn’t agree to the stepparent adoption?
If your child’s father doesn’t agree to the stepparent adoption, you’d have to litigate. If the child’s biological father has been involved at all, you’re unlikely to win. Even if he hasn’t, you are likely to face an uphill battle.
The court doesn’t like to effectively terminate parental rights for a biological parent – even one who has been less than consistent with child support or following through for his parenting time. The way the court sees it, the child gets the bonus of an involved stepdad without removing her biological father from the equation entirely.
It’s not impossible to win, but it’s likely to be a difficult contested case that could cost you significantly. It’s worth talking to an attorney one-on-one so that you can assess the advantages and disadvantages of taking this course of action in your specific case.
What if my child’s stepparent and I break up, too?
That’s always a possibility, right? The way your arrangement currently exists – with you as a parent and your child’s stepparent as a stepparent – if you were to break up, your child’s stepparent would have no right to custody or visitation and no obligation to pay child support. That would still be the child’s biological father’s responsibility.
If a stepparent adoption goes through, then your child’s stepparent becomes a legal parent – with equal legal status to your own. So, if you separate, you would have to resolve custody and visitation as well as child support. Your child’s stepparent could fight you for custody and you’d have the same legal standard to meet – best interests of the child – as opposed to the non-parental standard, which is actual harm. You would have equal legal standing, so your child’s stepparent would, as a legal parent, have the ability to get parenting time or even to “win” custody completely.
Of course, it all depends on the facts involved in any particular case, but the point is just that you and your child’s stepparent (now adoptive parent) would be on equal legal footing if there was a challenge to custody, visitation, and/or child support later.
Is stepparent adoption a good idea?
This is a personal question and the answer could vary depending on who gives it. For me, I say that it could be a very good idea, but, of course, you have to be certain. You and your new partner should be on solid footing in your relationship and it should be something that you’re both feeling strongly in support of. Your child, too, should have a strong emotional attachment to his or her stepparent.
Ideally, your child’s biological father is not involved or is willing to let parental rights go, if you’re going to go through with a stepparent adoption. If he’s not willing, then maybe having the biological father in his or her life, even in a reduced capacity or less than what you might wish a father would do for his child, might be better than an adoption, which might keep him from coming around at all. After all, if your new partner is a true partner to you and a true parent to your child, his or her role won’t actually be diminished by NOT adopting.
In a case where your child’s biological father is abusive, you may be in for a particularly long road, as he won’t be willing to give up his control either of you or of his child. In that case, of course, stepparent adoption might be preferable, but it might also not be achievable. This is why it’s important to have honest conversations with your attorney at the earliest possible stage, so that you can make the right decisions for yourself and your child. If it’s going to be a difficult road, then maybe you’d prefer not to spend the money for a less-than-ideal outcome, or even endure the stress (or put your child through the stress) that litigation might produce.
There’s no one-size-fits-all in custody. Stepparent adoption is a great option under the right circumstances, but if your child’s biological parent resists the adoption or your current marriage is not as strong as it could be, you might want to reconsider.
For more information or to learn more about custody in Virginia, give our office a call at 757-425-5200 or visit our website at hoflaw.com.