Special Issues in Child Custody: Adoption
Most of the time, adoption isn’t a big part of what we do. In some cases, though, it can come up in certain ways. Most of the time, the question is whether a new stepparent can adopt a child from a previous relationship.
There are all sorts of interrelated issues: termination of parental rights, stepparent adoptions, name changes, etc., on and on. While typically we don’t handle regular adoptions, from time to time it does happen as part of a larger custody case.
Termination of Parental Rights
Termination of parental rights happens when, legally, the court severs a parent’s relationship with their child. In order for someone other than the biological parent to adopt a child, the parental rights would have to be terminated, or the parent would have to have died.
It’s not easy, as you can probably imagine, to terminate parental rights – especially over that parent’s objection. Even a total deadbeat dad is unlikely to find that his parental rights have been terminated. In general, when we see this happen, its after years and years of documented abuse or some similarly egregious conduct.
Before you say it – it’s not JUST because the court supports the rights of biological parents to be involved in their kid’s lives, no matter how many times they’ve shown that they don’t deserve that consideration.
It’s also a financial matter. A child support matter. A parent whose rights have been terminated has no child support obligation towards that child. So, even if, for example, mom drew up an agreement that dad signed giving up his rights to the child, chances are very, very good that the court would NOT honor it.
After all, if dad doesn’t have to support the child, it falls on the state’s shoulders. The state is already overburdened with the children in the foster care system, and doesn’t take on extras for no reason. Certainly not just because dad doesn’t want to pay child support anymore and mom is willing to take advantage of that. Two parents on the hook to provide support for that child is ideal in the eyes of the court.
Parental rights do get terminated, but it’s usually after years and years of involvement in the court system, documented abuse, a CPS investigation, attempts at reunification, and so on. It’s not an easy process, and doesn’t often, if ever, happen by agreement.
There are lots of types of adoptions, but the one we see most frequently is a stepparent adoption – where the biological parent’s new spouse takes on responsibility for the child. This can happen both when the child’s other parent is living, and also when the child’s other parent is deceased.
As you can probably imagine, it’s fairly easy in the case that one of the child’s parent’s has died. It’s just a matter of filing the appropriate paperwork. When the child’s parent is living, though – and especially when they oppose the adoption – things can get sticky.
“I want my new husband to adopt my child.”
If you’re remarried and your new husband is interested in adopting your child, that’s wonderful! That being said, though, it may not be easy.
If your child’s father objects, you can have a hearing on the issue, but chances are good that unless there’s pretty significant abuse, a judge likely won’t terminate his parental rights and allow adoption. Even if he’s a deadbeat, it’s a pretty strong bar to overcome the preference for a biological parent.
It all comes down to the best interests of the child factors, and, generally speaking, the court feels that having both parents involved is in the child’s best interests. Not only that, but the child probably won’t lose contact with the stepparent over the refusal of the adoption – he’s married to you now, after all, so even if dad IS a deadbeat and doesn’t see the children, they’ll likely still have the influence of stepdad.
“I want to adopt my stepchildren – but my husband and I have separated.”
If you want to adopt your stepchildren, you’ll be in the same boat as the woman I described in the first scenario who wants her new husband to adopt her child. A non biological parent has a lot to overcome if the biological parent wants to stay involved, for whatever reason.
Another little wrinkle I’ve seen in a couple cases is where the mom wants to adopt the stepchildren even after she and her husband have separated. In fact, this has come up in cases I’ve worked on several times over the years.
It’s easy to fall in love with children. If you’ve fallen in love with your stepchildren, even though you’re not longer intending to stay with their father, you’re not alone – but you’re still in a really difficult position. It’ll be virtually impossible to adopt if biological mom opposes it (after all, it’d be her you’d be legally replacing) AND you’re not married to (nor supported by) the child’s biological father.
I’ve had the most success in these cases with visitation being delegated to the former stepmom. It doesn’t always happen, of course; as a nonparent (more on this later), you have a very high bar to meet in order for the court to award you visitation, especially over a parent’s (or, worse, both parent’s!) objection. If he’ll agree to delegate some of his visitation to you, though – that’s likely your best bet.
It’s tricky to change a child’s name, too! Unless the child is 18, if you want to change his or her name, you’ll have to demonstrate that actual harm would befall the child from failing to change his or her name. Basically, that the association with dad’s name is really harmful to the child’s psyche.
That’s hard to do! It’s not entirely impossible, but it’s definitely not easy.
As always, it’s a good idea to talk to an attorney if you’re trying to take any one of these routes. It’s going to be an incredibly fact-specific analysis, and you can provide details that will help ensure that you’re receiving the best advice possible. While you probably already know that this will be a tricky thing to do, you’ll want to talk to someone who can weigh the advantages and disadvantages of all the information for and against your case.
For more information, give our office a call at 757-425-5200.