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Adoption is one area that's easier to navigate for stepfamilies than it is for non-stepfamilies. (We found an easier area! Hurrah!) Adoption after a parent has died is simplest. It can get confusing—not to mention legally and emotionally complicated—if the birth parents are both living and are either divorced or never married to each other.
Adoption is regulated by states, and there are some significant differences between how things are done in, say, New Hampshire and California. Fortunately for us, some things are the same, and some general principles and concepts don't vary too much from place to place.
Lawyers! Yes, Indeed
Lawyers are not always necessary in life, and many people feel they get more work than they should. They're essential, though, for adoptions. If you're beginning the journey to stepparent adoption, you'll need some support and lots of information to get through the snarls of legality. Make sure you ask how many adoption cases your lawyer has done and whether he or she specializes in family law. This is the most important thing you can do for yourself.
Familiarize yourself with your state laws and precedents. If you are willing to spend time in a law library, you may not need a lawyer for this. (If you have decided to get your information through a lawyer, consider hiring a research lawyer because they usually charge less than a trial lawyer.)
It may sound silly and obvious, but your partner (the custodial parent) must also consent to the adoption. That means no holiday surprises: “Guess what, darling? Your little Joey is now our little Joey!”
If the other bioparent is still living, he or she must consent to the adoption unless his or her parental rights are terminated. Consent procedures differ. In some states, the birth parent must sign a form in front of a social worker. In others, the birth parent must appear in court.
What if you can't find the birth parent? Haul out the phonebook and turn to “Private Investigator.” Unwed fathers (if they were never married) must be notified in most states and, in many states, must give consent to the adoption as well.
Once you have consent, you can skip down to the section “Filing the Petition.” If you can't get consent (or cannot locate the parent), read on!
Terminating Parental Rights
If you can't get consent from a child's parent, you must go to court for a Termination of Parental Rights hearing. (Okay, time to bring the lawyer in, right about now.) You're going to have to prove that the parent has given up his or her parental rights to the child. The laws are inconsistent from state to state on this one, but generally the court decides on parental rights based on both the parent's previous behavior toward the child (abandonment, abuse, or neglect) and character concerns.
Here are some representative conditions the court may consider. (I include them here so you can get an idea before you call your lawyer—which you do need to do!):
- Abandonment. Has the parent maintained an active interest in the child's life? What if the parent hasn't supported the child but sends cards on a regular basis? In some places you must prove that the parent intended to abandon the child. In other places, the parent needs to have deserted the child for more than three months. Abandonment (as with all consent law) is decided by the court. “The court” means the judge you get and the state you live in. Judges and states vary widely. Do your research before you claim abandonment to find out how things in your neck of the woods generally go.
- Abuse and substantial neglect. The court may need to see that abuse or neglect was significant, and that it happened more than once.
- Failure to support. In many places, failure to support a child is considered a condition only when the parent could pay but didn't (“Hey, I had to buy a boat, man!”). In other places, chronic underpaying makes parents eligible to lose their parental rights. Some deadbeat parents who are reluctant to consent to an adoption have made deals to avoid having to pay their child support in arrearage (the amount of back child support they owe).
- Failure to protect. Neglecting to protect a child from known dangers is another condition that may cause a parent to lose his or her parental rights.
- Character issues. Depravity, open and notorious adultery or fornication, habitual drunkenness, and drug addiction are all conditions that may be considered as just cause for a parent losing his or her parental rights.
As you might imagine, court cases discussing these matters can be pretty brutal for everybody concerned.