Mary Carollo: Step-Parent Adoption Information

Being a parent is a rewarding, yet difficult job. When you’re a stepparent, the job can present additional challenges as you fill an important niche in a child’s life. Sometimes stepparents chose to further expand their role by adopting their stepchildren, although there are legal hurdles that must be crossed to formalize that relationship. This article will provide answers to some of the most common questions about stepparent adoption, including:

The legal requirements needed to complete the process;
The duties and rights of the birth parents; and
The eligibility of same-sex couple step parents.

I want to adopt my wife’s birth children. How difficult is it to adopt stepchildren?

It is not difficult as other types of child adoption, but there are still steps that must be taken. In most other child adoptions, the court requires home visits and adoption hearings, and there is a long waiting period. Because in a stepparent adoption the parties are related, the courts may remove these requirements in order to speed up the process. The main issue that most stepparents adopting a stepchild face is obtaining consent from the other birth parent.

Do I need consent from the birth parents to adopt my stepchild?

Yes. In all stepparent adoptions, the consent of the other birth parent is required. If that other birth parent’s parental rights have been terminated due to abandonment, neglect, unfitness, or failure to pay child support, however, then that birth parent’s consent is not required.

Getting consent from the other birth parent is often difficult because, in giving consent, that birth parent is giving up all of his or her parental rights. Of course, this means that that birth parent is giving up all parental responsibilities, such as paying child support, as well, so if the birth parent does not have a relationship with the child anyway, the stepparent may have an easier time getting consent. In some cases, the other birth parent may recognize that the stepparent adoption is in the child’s best interest. In those cases, consent is not hard to obtain.

If the other birth parent does not consent, can his or her rights be terminated, anyway?

There are ways to terminate the other birth parent’s parental rights, which would eliminate the requirement of his or her consent. Parental rights can be terminated if you can prove the other parent abandoned the child, is unfit, or is not the biological father (when the other parent is male).

How to prove the other birth parent abandoned the child: “Abandonment” means that the parent has not communicated with the child or provided financial support for the child. In most states, if the other birth parent has continuously failed to provide child support or has abandoned the child for a length of time (one year in most states), then his or her parental rights can be terminated.
How to show the other birth parent is unfit: 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 deem the other birth parent unfit if she or he is abusive, neglectful, fails to visit, has a mental disturbance, is addicted to drugs or alcohol, or is incarcerated. Usually, when only one birth parent is deemed unfit, sole custody will be awarded to the other fit parent. In this case, stepparent adoption is easier, because the consent of the unfit parent is not required.
How to show the presumed birth father is not really the father: Showing that the other parent is not legally the father can also terminate that father’s parental rights. Each state has family laws stipulating who the presumed father is in certain situations, so be sure to check your own state’s laws. In ALL states, when a child is born to a married couple, the husband is the presumed father. If a man marries a woman after the birth of the child and the man is named as father on the birth certificate, that man is the presumed father. If you can show that the purported other parent is not the presumed father, you do not need to show unfitness or abandonment. You only need to show that he does not meet your state’s legal definition of “presumed father”. If you can do this, the court may terminate his rights. Thus, you wouldn’t need his consent for stepparent adoption. If the other parent DOES meet one of the requirements of your state’s “presumed father” definition, then either his consent will still be required, or you will need to prove abandonment or unfitness.

My partner and I are a same-sex couple. Can I adopt his child?

The U.S. Supreme Court’s 2015 Obergfell v. Hodges ruling overturned all state bans on same-sex marriage, making marriage equality the law of the land. In most cases, same-sex partners can adopt using the stepparent adoption procedures just like opposite-sex married couples can.