Can I Adopt My Spouse’s Child?

Can I Adopt My Spouse’s Child?

Stepparent adoption is a formal court process that allows a biological parent’s spouse to adopt the spouse’s child.

When the court finalizes a stepparent adoption, the child will receive a new birth certificate with the adoptive parent’s name listed in the biological parent section, and if desired, will also take that parent’s last name.

Stepparent adoption is the most common adoption procedure in the country because the process is more streamlined and less complicated than other forms of adoption. For example, most adoptions require a home study, which can take several months to complete, but some states waive the home study in stepparent adoptions.

Getting Parental Consent

Although the stepparent adoption process may be easier in many respects, the most challenging task can be obtaining the other birth parent’s consent. Some biological parents consent to the adoption because it’s in the child’s best interest. Others may agree because it will extinguish their obligation to pay child support once the adoption is final. In an ideal situation, the noncustodial biological parent will agree to the adoption, and you can file a joint request.

However, it’s often challenging to get parental consent to adoption because this means giving up all rights to a child. Generally, a complete termination of parental rights means the biological parent:
• loses the power to make any and all decisions for the child
• gives up all visitation rights and can no longer see or spend time with the child, and
• gives up the right to communicate with the child.

If you have trouble reaching an agreement, or the other biological parent won’t consent, you will need to ask the court to terminate the other bio parent’s rights. The judge will not allow the adoption to proceed unless there’s a valid reason to terminate parental rights, like abandonment, unfitness, or a history of child abuse.

Asking the Court to Terminate Parental Rights

If your child’s other birth parent will not consent to the adoption, or if you can’t locate the parent, you can ask the court for help. The court’s primary concern is what’s best for the child, and you can demonstrate that stepparent adoption is best for your child is a variety of ways. However, because termination of parental rights is absolute, the burden of proof is very high, and the court will only allow the adoption to proceed if it’s certain that it’s best for the child.

Abandonment

You may feel hopeless during the adoption process if the other parent is absent and you can’t obtain consent. However, the stepparent adoption process can continue if you can prove that the parent hasn’t had contact with the child or hasn’t exercised parental rights for the child. Every state’s abandonment laws vary, but most states require at least one year to pass where the parent has failed to support or communicate with the child. In cases where the parent pays child support, but doesn’t see the child or exercise any other parental rights, the termination process may be more complicated.

Unfitness

If the other parent has a history of child abuse, is addicted to drugs or alcohol, or is incarcerated, the court will conduct a hearing to determine if it’s in the child’s best interest to let that parent continue to exercise parental rights. In these types of cases, if the biological parent’s spouse is stable and committed to providing the child with a better life, the court may involuntarily terminate the other parent’s rights and allow the stepparent adoption to continue.

Paternity Issues

If the absent parent is male, you can terminate his rights if you can prove to the court that he is not the child’s biological parent. Every state has varying laws regarding who is presumed to be the biological parent, so it’s critical to understand what the law is in your state. For example, in Michigan, if an opposite-sex couple is married when the child is born, the court automatically presumes that the woman’s husband is the father, so the child’s birth certificate will reflect that the husband is the biological father. If either spouse later discovers that the presumption is incorrect, the parent will need to meet the state’s requirements (within the required period), to rebut the presumption. If you can show that the other biological parent doesn’t meet your state’s requirements for presumed parenthood, the court can terminate that parent’s rights, and you can move forward with your stepparent adoption. However, if the other biological parent doesn’t consent and demonstrates that the presumed parenthood is accurate, you’ll need to either obtain consent from the other parent or ask the court to terminate parental rights by proving abandonment, unfitness, or any other state-approved standard.

Stepparent Adoptions and Same-Sex Marriage

In 2015, the United States Supreme Court (USSC) overturned the ban on same-sex marriage making it legal in all 50 states. Prior to this, couples living in states where same-sex marriage wasn’t legal could not petition the court for stepparent adoption, even if both biological parents consented. Tragically, this meant that if the biological parent died, the child would likely end up living with strangers instead of the other (non-biological) parent. Presently, however, if you’re legally married to a same-sex partner, you have the same rights to stepparent adoption as opposite-sex couples. But you’ll need to meet the same requirements as other couples. It’s common for same-sex couples to have children using sperm or egg donors, and the donors typically sign away parental rights, which eliminates the sometimes monumental task of obtaining consent in a stepparent adoption. On the other hand, if one biological parent has a child with an ex-partner or ex-spouse, you’ll need to obtain consent or go through the court process of terminating parental rights before you can finalize your adoption.

Stepparent and Second-Parent Adoptions

In a stepparent adoption, a parent marries someone other than his or her child’s other parent, and the new spouse adopts the child. When the adopting couple is married, the adoption is usually readily approved. These adoptions usually don’t cost much and may not require a home study by a social worker. The equivalent process for unmarried couples is called “second-parent adoption.” When the adopting couple is unmarried, the cost may be higher and a social worker home study is almost always required. In addition, a number of states still frown upon second-parent adoptions when the couple is unmarried. If you are considering one of these adoptions, you’d be wise to consult with a local family law attorney to get an evaluation of your rights. Keep in mind that if you don’t adopt your partner’s biological child, you risk losing access to the child if you and your partner separate.

A child cannot be adopted without the consent of both parents, unless one parent has failed to establish a parent-child relationship with the child or has abandoned the child. If the noncustodial parent is the father, the social service agency will determine whether his consent is needed before a stepparent or second-parent adoption can take place. A father who signs a paternity statement, provides support (if he can), and maintains a relationship with his child, can probably prevent the child from being adopted by someone else. In addition, especially if the child is a baby and the father has had little opportunity to support or visit the child—or has been prevented from doing so by the mother—he may be able to prevent the stepparent or second-parent adoption and petition the court to obtain visitation. If the noncustodial parent is the mother, the social service agency will have to obtain her consent or recommend that her parental rights be terminated. Unmarried mothers without custody must pay support if they can and visit the child or face losing the child to a stepparent or second-parent adoption. Remember, once a person does formally adopt a child, that person has all the legal rights and responsibilities of a biological parent, whether the adopting parent is a partner who legally adopts the biological child of an unmarried partner or part of an unmarried couple that jointly adopts a child.

Benefits of Adopting Your Stepchildren

Adopting a stepchild is a voluntary act, and not all stepparents adopt their spouse’s children, but doing so can bring about some extraordinary benefits in the lives of the stepchild, the stepparent, and the spouse of the stepparent.

Here are three primary benefits of adopting your stepchild.

You Will Have the Right to Make Decisions and Be Involved in Your Stepchild’s Life

If you are a stepparent of a child but have not adopted the child, then you are not considered the legal parent of that child. This means you do not have the legal rights and responsibilities associated with being a parent of the child, such as being able to take part in decisions relating to that child’s welfare or upbringing. Furthermore, the child’s other biological parent (not the one you are married to) may indeed have some rights with regard to important decisions on the child’s behalf that you do not, such as taking part in making educational, medical, and religious decisions. You may also lack the ability to do things such as visit the child in a hospital or accompany the child to certain places if you are not an adoptive parent.

Finally, if your marriage ends or your spouse dies or becomes incapacitated, without an adoption you may no longer have any right to be involved in the child’s life and full custody may go to the spouse, the other biological parent, or even a grandparent instead. By taking steps now to adopt a stepchild, you can avoid these outcomes and gain the full legal rights of parenthood.

You Can Minimize the Influence of a Difficult Biological Parent

In a stepparent adoption, the parental rights of the other biological parent not living with the child will be terminated. What this means is that the other biological parent will no longer have rights to shared custody (if any previously existed) or visitation, and thus that parent will not have the ability to obtain a court order to interact with or otherwise influence the child. This termination also ends any child support obligations.

Although there are plenty of scenarios in which a noncustodial biological parent is either a positive or neutral influence on a child’s life, in all too many cases they are an unwanted influence on a child due to behavioral issues, drugs and alcohols, disagreements with how the child should be raised (e.g. religious or educational matters), and so on. Although you and your spouse remain free to voluntarily allow a biological parent to remain connected with the child, with a stepparent adoption you will also have the ability to avoid any and all contact between the child and that parent.

You Can Demonstrate Your Ongoing Devotion to Your Stepchild

Aside from the legal rights that you will gain as a parent, legally adopting your stepchild is a vivid and real demonstration of your ongoing devotion to your stepchild. What you are saying to your stepchild, your spouse, and the world is that you are pledging to care for that child as your own, and that that stepchild can grow up knowing that, no matter what happens, he or she will have the security of being able to count on you as a supportive parent.

Stepparent Adoption FAQ’s

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

It is generally not as difficult as other types of child adoption but there are still steps that must be taken. In a stepparent adoption where the child already resides in the household with a birth parent and the stepparent, some of the home visit requirements may not apply. 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 both birth parents is required. However, if a birth parent’s parental rights have been terminated, then that birth parent’s consent is not required. Getting consent from the other birth parent is often difficult because it means that the birth parent is giving up all parental responsibilities. If the birth parent doesn’t have a relationship with the child, the stepparent may have an easier time getting consent.

If The Other Birth Parent Does Not Consent, Can Their Rights Be Terminated Anyway?

There are ways to terminate the other birth parent’s parental rights, which would eliminate the requirement of their consent. Parental rights can be terminated if you can prove the other parent:
• Abandoned the child
• Is unfit
• Is not the biological parent

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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