Stepparent Adoption Attorney

The California Family Code states that a stepparent cannot adopt his or her steppchild without the consent of the other biological parent.

Obtaining consent can be a difficult undertaking, depending on your family situation. Consenting to a stepparent adoption means giving up any and all parental rights, including the right to make major decisions about the child’s life (e.g. schooling and medical care) and the right to visit the child. Consenting to a stepparent adoption also means termination of child support, if there was any. In the best-case scenario, the non-custodial biological parent will realize that a stepparent adoption is in the child’s best interest and give consent. However, it is not always that easy.

If the non-custodial parent refuses to give consent, there are other legal options to pursue. Depending on how much contact and support the child gets from the non-custodial parent, you can seek to terminate his or her parental rights. The options for termination of parental rights are:

• Willful failure to support: If the non-custodial parent has failed to support the child AND failed to communicate with the child for at least one year, you could argue that he or she willfully failed to support the child. If the absent parent is unable to show a good reason for the lack of support and communication, the court can waive the requirement of consent and allow the adoption to proceed.
• Abandonment: If the non-custodial parent has failed to either support the child OR communicate with the child for at least one year, you could argue that the absent parent has effectively abandoned the child. However, these circumstances are less open-and-shut than willful failure to support. In order to prove abandonment, the state probation department must investigate the child’s relationship with his or her biological parents. The probation worker will often meet with the custodial, biological parent and the child to learn how much support the other parent has given, what the parent’s relationship is like with the child, and determine whether or not the non-custodial parent’s actions constitute abandonment. The court will take the probation worker’s report and the parents’ testimony into account to decide whether or not parental rights should be terminated.
• Alleged father: If the absent parent is male, in some circumstances, you can argue he is not the “presumed father” in the eyes of the law. A man is the presumed father if he is married to the child’s mother at the time of birth, as well as if he marries her after the birth and is named on the birth certificate. However, if the parents were never married, there is no legal presumed father. In these cases, it is much easier to terminate parental rights.
• Unfit parent: If you can prove that the other biological parent is not fit to raise a child, his or her parental rights could be terminated. A parent can be determined unfit if they are neglectful, abusive, mentally ill, incarcerated, or suffering from alcohol or drug addiction. If one party is unfit for parenting, sole custody will be awarded to the fit parent. In these cases, consent of the absent parent is not required and the adoption can proceed.

It is important to note that each and every family situation is different. The court takes a number of factors into account when considering termination of parental rights, but the child’s well-being is always the number one priority.