Stepparent Adoption FAQ's
Stepparents occupy a unique role in the lives of their stepchildren. Anyone who marries a single parent chooses to raise a child that is not theirs. They may live in the same home as the child and share parenting duties with their spouse.
Some stepparents voluntarily decide to formalize their role in the child's life by adopting them. Adoption legalizes their relationship with the child. As an adoptive parent, they have all the rights and responsibilities of a legal parent.
Adoption, even stepparent adoption, is a legal process. There are steps the biological parent and the stepparent must take. This article will answer a few frequently asked questions about the stepparent adoption process, including:
- The legal requirements needed to complete the process
- The duties and rights of the birth parents
- Eligibility of same-sex couple stepparents
Q: I Want To Adopt My Spouse's Children. How Difficult Is It To Adopt Stepchildren?
A: Stepparent adoption is not as difficult as other types of child adoption, but there are still steps the family must take. In a stepparent adoption where the child already resides in the household with a birth parent and the stepparent, requirements like a home study or a background check may not apply.
The stepparent and their spouse will file a petition for adoption, with or without the help of an adoption attorney. They will face many of the same issues prospective adoptive parents face: adoption hearings, name changes, getting consent from a birth parent, and supportive family members.
Q: Do I Need Consent From the Birth Parents To Adopt My Stepchild?
A: Yes. All stepparent adoptions require both legal parents' consent. There are several ways to consent to adoption. The other birth parent could voluntarily give up their rights. If they do this, they give up all rights and responsibilities to their biological child. This includes child support and inheritance. There are some circumstances, such as abandonment, where a judge can terminate parental rights.
Depending on the child's age, the child must consent. This typically applies to children between 10 and 14 years of age.
Q: If the Other Birth Parent Does Not Consent, Can Their Rights Be Terminated Anyway?
A: If the other birth parent does not consent to the adoption, there are different ways to terminate parental rights. Terminating parental rights is a serious and challenging choice for many birth parents.
A judge may terminate parental rights if the custodial parent can prove the other parent:
- Abandoned the child
- Is unfit
- Is not the biological parent
Child abandonment occurs when a parent or guardian intentionally deserts a child without considering the child's well-being. A judge can terminate parental rights if the other birth parent has continuously failed to provide child support or abandoned the child for a time (from six months to one year in most states).
Termination of parental rights for abandonment will require a court hearing to determine if the noncustodial parent has abandoned their child. Like most family law hearings, the court will use the child's best interests standard to decide if terminating parental rights is appropriate.
The biological father or mother must have an opportunity to appear before the court. The court can overturn the stepparent adoption if the birth parent does not have this opportunity.
If the custodial parent is successful in an abandonment hearing, the court can issue a court order terminating the biological parent's rights.
If you have cause to show that the other birth parent is unfit, most state courts will conduct a fitness hearing. At this hearing, the court will consider the other birth parent unfit if there is proof of unfitness. The court will consider abuse, neglect, failure to visit, drug addiction, or incarceration, among other factors.
If the presumed birth father is not the father, showing that the other parent is not legally the father is another way to terminate that father's parental rights. In all states, the husband is the presumed father when a child is born to a married couple. If a man marries a woman after the child's birth and he is named on the birth certificate, that man is the presumed father.
If the birth mother can show that the other parent is not the presumed father, there is no need for a fitness hearing or consent for a stepparent adoption.
Q: My Partner and I Are a Same-Sex Couple. Can I Adopt Their Child?
A: The Supreme Court's decision in Obergefell v. Hodges (2015) overturned all state bans on same-sex marriage. Marriage equality is the law of the land. Depending on their circumstances, same-sex parents can use stepparent adoption if it applies to their situation. Same-sex couples can also adopt through second-parent adoptions. Second-parent adoptions are for unmarried couples living in the same home. Second-parent adoptions apply to biological children and adopted children. Some adoption agencies only place children with married families. With second-parent adoption, both parents have the same parental rights.
In second-parent adoptions, the non-legal parent adopts their partner's child. After the approval, the new adoptive parent has the same rights as their partner. This includes child support and visitation if they separate.
Finalizing the Adoption
Stepparent adoptions are not as complex as other types of adoptions. For example, some states don't require a home study or background check for this type of adoption. After the adoption hearing, a court-appointed social worker may visit the home to check on the family. The court will schedule a final hearing. If everything is in order and there are no objections, the court will approve the adoption. The adoption order will list the stepparent as the new parent of the child. The adoption order allows the family to apply for a new birth certificate. This new birth certificate will list the new legal parent and the child's new name.
Need Help With Your Adoption Case? Contact an Attorney
Stepparent adoption laws vary by state. A lawyer will make the process easier and increase the likelihood of success. You should also check the local court's website for information, forms, and instructions on proceeding with the stepparent adoption. An excellent first step in the adoption process is to seek legal advice from an experienced adoption lawyer.
Can I Solve This on My Own or Do I Need an Attorney?
- It is a good idea to have an attorney for complex adoptions
- An attorney can ensure you meet all legal requirements and that your adoption is finalized appropriately
- An attorney can help protect the best interests of adoptive children, adoptive families, and birth parents
- For simple adoptions, you may be able to do the paperwork on your own or by using an agency
Get tailored advice at any point in the adoption process. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Adopting a child is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.