So, your child’s biological father is a deadbeat, and now you’ve found Mr. Wonderful (not Mr. Wonderful of the Shark Tank variety, to be clear). He is willing to adopt your child, and to have her assume his last name. Isn’t it amazing?
But is it really that easy? In most cases, no! It’s actually fairly complicated — if not downright impossible!
The way the law sees it, the biological dad – deadbeat or no – has some rights here. A lot is going to come down to whether he’s willing to sign away his rights, which, in my experience, is sorta rare. Of course, if he’s a complete and total deadbeat, he may be willing to sign away the rights to his child when you tell him that then he will no longer be on the hook for child support. If that’s his biggest concern, well, that may sway him to your way of thinking. If you can get him to agree, well, then, congratulations — you may be able to get him to allow your new husband to adopt your child, and change your child’s name accordingly.
If that’s not enough, though – well, to put it nicely, you’re in for a bit of a battle. Neither one of these things are simple matters, and it’s not enough to just say (or allege) that your child’s father is uninvolved, or that he doesn’t pay support.
Legally, as far as the court is concerned, dad has rights. And, for the most part, you won’t be able to get a stepparent adoption without his consent. You could contest it and have a whole trial, but, chances are, if he’s interested in being involved, even if he hasn’t been previously, he’s going to be given that opportunity.
Even if you petition the court again, later on, after he has had an opportunity to parent and still chooses not to, you’ll almost certainly lose. It’s all down to best interests of the child, those pesky ten commandments of custody cases in Virginia. The way the court looks at it, having dad in the picture IS important for the child. Certainly more important than a step dad. It doesn’t matter if stepdad is literally superdad, or if he’s got the financial wherewithal to provide everything the child could need – after all, he could always supplement if necessary.
Really, dad is paramount. Not so much because of his virtues (or, in fact, in spite of a total lack thereof), but, again, because of the best interests of the child. And a biological dad trumps a hypothetical potential adoptive father.
And, yes, that’s true even if your child really, really loves her stepfather. Even if stepfather is the greatest dad in the whole wide world. After all, he’s obviously doing all those awesome things without adopting the child! The way the court sees it, its logical to wonder whether keeping dad as dad, and stepdad as stepdad (maybe even especially if he’s awesome) allows the child to keep both father figures in her life. And does that suit the child’s best interests? I think its a reasonable line of thought.
You can also petition the court to change the child’s name. Usually, we see a mom wanting to have the name changed from her child’s father’s last name to her name. It may be easier than a stepparent adoption when your child’s father objects, but – well, it’s not at all easy. The court adopts an “actual harm” standard, so you’d have to show that NOT getting the new name, or keeping the father’s name, would actually cause the child harm.
It’s still a high standard, though, so you’ll really have to pull out all the stops. After all, how does a name cause actual harm to a child? What comes immediately to my mind is if dad is a well known criminal, and the child is harmed by the association.
Either way you slice it, if your child’s father isn’t in agreement with your plans, you may be spinning your wheels for no real purpose. It’s always a good idea to talk to a licensed, experienced Virginia divorce attorney about the facts as it relates to your unique case before making any big decisions about your case or how to begin to move it forward.
It might not also be a bad idea to work with a therapist to assess the possible impact of these changes on your child as well. Even if dad is a deadbeat, dad is often still dad in the child’s eyes. Just because you wish things were different or more reflective of reality doesn’t mean that your child will understand and agree — or that changes won’t be harmful. Probably a good idea to have your child working with an experienced therapist to look into some of these issues. Especially if this heats up an already emotionally charged situation, you’ll want to have a framework in place to focus on your child’s best interests.
For more information or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.