In a Step-Parent Adoption case, there can be potentially many players: the child, the mother, the legal father, the biological father, and the step-parent.
While most people can easily identify the child, the mother, and the step-parent, the terms “legal father” and “biological father” may be new. In most cases, the legal father and the biological father will be the same person. However, if a child results from an extra-marital affair between the mother and another man, then that child will have a legal father (the husband) and a biological father (“Another Man”).
A typical step-parent adoption case arises when the mother and husband divorce and several years later, the mother marries “Step-Dad” who wants to raise the child as his own. In order for Step-Dad to adopt the child, the parental rights of the other father or fathers must be terminated. The easiest way to terminate a person’s parental rights is to obtain his or her consent.
In certain circumstances, consent is even required. (See 63.062 below) A petition to terminate parental rights pending adoption may be granted only with written consent after the birth of the child or after notice has been served to the mother of the child. (See 63.062, 63.082, 63.089 section (3), 63.088 below)
A petition to terminate parental rights pending adoption may also be granted with written consent to the father of the child, if:
- The child was conceived or born while the father was married to the mother (even if someone else is the biological father);
- The child is his child by adoption;
- The child has been adjudicated by the court to be his child before the date a petition for termination of parental rights is filed;
- He has filed an affidavit of paternity (see 382.013, section (2)(c) below) or he is listed on the child’s birth certificate before the date a petition for termination of parental rights is filed; or
- In the case of an unmarried biological father, he has acknowledged in writing that he is the father of the child and has filed certain documents with the Office of Vital Statistics of the Department of Health, and has complied with specific requirements. (see 382.013, section (2) below)
Once Husband becomes aware that the child is the product of an extra-marital affair, he may consent to termination of his rights. Complications often arise when a parent fails to consent to a termination of his or her rights.
As stated above, sometimes the court can terminate a person’s parental rights even if they do not want to consent. (See 63.064 below). The court may waive the consent of the following individuals to an adoption:
- A parent who has deserted a child without means of identification or who has abandoned a child.
- A parent whose parental rights have been terminated by a court order.
- A parent who has been judicially declared incompetent and for whom restoration of competency is medically improbable.
- A legal guardian or lawful custodian of the person to be adopted, other than a parent, who has failed to respond in writing within 60 days to a request for consent or who is found to be withholding his or her consent unreasonably.
- The spouse of the person to be adopted, if the failure of the spouse to consent to the adoption is excused by reason of prolonged and unexplained absence, unavailability, incapacity, or circumstances that are found by the court to constitute unreasonable withholding of consent.
Because to most people, abandonment is often a feeling rather than a threshold for the court that must be proven by clear and convincing evidence, the legislature defined the term.
Abandonment is legally defined as “a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child’s support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child’s mother during her pregnancy”. (See 63.063 section (1) below)
Once the parental rights have been terminated, the child is free to be adopted by the step-parent.
For the specific statutes referenced above, please click on these links:
If you are interested in hiring a lawyer to help you defend against or pursue a step-parent adoption case, please contact the knowledgeable lawyers at Fletcher and Phillips at 904-353-7733.