It is often said that raising a child takes a village, however, children may only have one set of legal parents. Through the adoption process, the court is able to make legal parents out of those who are not the biological parents of the child. In the legal portion of this process, the court will attempt to determine the best parents for the child. In order to make this informed decision, multiple adoption studies and reports with specific requirements are necessary by law. These requirements can be confusing, so there are many frequently asked questions about this process.
Who can adopt?
Scenarios in which a person may qualify to adopt a child.
1) A child may be adopted if the rights of the child’s living parents have been terminated or if a lawsuit for the termination of their parental rights is filed with the suit for the adoption. Termination of parental rights may be voluntary or involuntary.
2) Stepparents may file for the adoption of a child but there are some specifications. Stepparent adoptions require that the parental rights of the parent who is not the stepparent’s spouse be terminated. If this parent’s rights are not yet terminated, there will need to be an order of termination before the child is eligible for adoption. The termination suit and the adoption suit are able to be filed as one case and will occur in the same court hearing. The parent whose rights have not been terminated must currently be the spouse of the petitioner (the stepparent) and must join as a petitioner in the case.
3) This next adoption scenario requires the consent of the parent whose rights have not been terminated. The child must be at least two years old, one of the child’s parents must have had their parental rights terminated, and the parent whose rights remain must consent to the adoption. The person seeking adoption must have been a managing conservator or had possession, care, and control of the child for at least six months before filing for the adoption, or must be a former stepparent that has been a managing conservator.
4) A child may also be adopted without the consent of the parent whose parental rights remain if the child is at least two years old and one parent has had their parental rights terminated. The person seeking the adoption must be the former stepparent and have been a managing conservator or have had possession, care, and control of the child for at least one year before filing for the adoption.
Who needs to consent?
1) The consent of a managing conservator is required unless the managing conservator is the person petitioning for adoption. This requirement may also be waived if the court finds that the managing conservator is refusing or revoking consent without good cause.
2) If the parent of the child that maintains parental rights is currently the spouse of the person petitioning for the adoption, that parent must join in petitioning for the adoption. Beyond this, further consent from this parent is not required.
3) If a child is 12 years old or older they must consent to the adoption in writing or in court. This requirement may be waived if the court finds that the adoption would be in the child’s best interest or if consent has been refused or revoked without good cause.
What is the “best interest” of the child?
Supreme Court outlined the factors that should be considered by the court when determining the best interest of the child. Justia Law provides a record of the Holley v. Adams case that outlines these factors as:
1) The desires of the child
2) The emotional and physical needs of the child now and in the future
3) The emotional and physical danger to the child now and in the future
4) The parental abilities of the individuals seeking custody
5) The programs available to assist these individuals to promote the best interest of the child
6) The plans for the child by these individuals or by the agency seeking custody
7) The stability of the home or the proposed placement
8) The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
9) Any excuse for the acts or omissions of the parent
The case also notes that this is not an exhaustive list but some important and relevant factors to take into consideration.
With the many specifics involved in the adoption process, it can become incredibly overwhelming. While these general questions and answers may be helpful, it is important to consult with a family lawyer to review the specifics of your case as every situation is different.
Our friends at Brandy Austin Law Firm, PLLC. can answer all your legal questions.