Biological parents are the only parents who have legally cognizable rights without a formal adoption or guardianship taking place. Legal rights of biological parents generally include the right to make legal, medical, educational and religious decisions on behalf of the child.
A stepparent has no rights to make legal decisions on behalf of a biological child of their spouse unless a formal adoption occurs; simply marrying the child’s biological parent does not automatically create legal rights for the stepparent.
While the stepparent may enjoy some of the privileges of a biological parent (such as helping the biological parent raise the child), these privileges are simply a virtue of the marriage; however they do not provide decision-making rights or the right to see the child in the event of a divorce.
What is a Step-Parent Adoption?
An adoption occurs through a legal two-step process where: (1) a legal relationship between one biological parent and the child is terminated; and (2) a legal relationship is established between the new parent and the child. A step-parent adoption therefore involves establishing a new relationship between a step-parent and their stepchild, wherein the step-parent gains new legal rights in connection with the child.
How Can I Adopt My Stepchild?
The adoption process varies from state to state. But generally, the first step requires the consent from the stepchild’s other biological parent to the adoption. This is turn will cause him or her to relinquishing their parental rights. When the biological parent is willing to consent, they must sign an “Adoption Surrender” or “Consent to Adoption” in the presence of two witnesses and a notary public.
Next, a “Petition for Adoption” must be filed with the appropriate court, along with any other paperwork the specific court requests. Depending on the situation and the court rules, there may be interviews, family counseling, or home visits required. The adoption is then final once the court approves it and issues the appropriate paperwork.
What If One Biological Parent Refuses to Consent to the Adoption?
If one of the biological parents refuses to consent to the stepparent adoption, the other biological parent and the stepparent may still pursue the adoption and seek to terminate his or her biological rights. Instances where the consent of the other biological parent may not be required include:
- Abandonment: Generally, child abandonment indicates that the parent has been absent, failing to communicate with or support the child financially for a certain period of time. The abandonment period varies from state to state, but is generally anywhere from 6 months to 1 year. In cases of abandonment, the non-consenting parent is generally still entitled to notice and should have an opportunity to respond to the adoption.
- Best Interests of the Child: Where it can be shown that the stepparent adoption is in the best interests of the child, consent from the other biological may be required. Examples include situations involving abuse, child neglect, or where it can be shown the parent is unfit. As in the case of abandonment, non-consenting parents are generally still entitled to notice and an opportunity to respond to the adoption.
- Parental Rights Already Terminated: If parental rights have already been terminated in another legal proceeding, consent from the other biological parent is not required.
What Other Consent is Required in a Step-Parent Adoption?
The biological parent who is married to the stepparent seeking the adoption must provide the court with their consent to the adoption. In addition, some states require the consent of the child who the stepparent is seeking to adopt. States generally require the child’s consent around age 14.
What are a Step-Parent's Rights After Adoption?
Once a formal adoption takes place, a stepparent is treated as if he or she was always the child’s biological parent under the law. The stepparent has the same rights as the biological parent, even in the event of divorce or death of the other biological parent.
What are Some Other Considerations in a Step-Parent Adoption?
The following are situations that stepparents should consider when thinking about adopting a stepchild:Relationship After A Divorce
When a new marriage is entered into by a biological parent (particularly those with younger children) close relationships are often formed with the child, causing stepparents to view them as their own biological child. Often, this bond even withstands a divorce between the stepparent and biological parent.
In cases where a divorce occurs without a formal adoption taking place, the two may agree to joint custody or a visitation schedule. However, without the stepparent obtaining legal rights to the child through an adoption, the biological parent can revise this agreement at any time and without consequence.How Adoption Affects Inheritance
A stepparent may want to ensure that his or her stepchild receives an inheritance on their behalf. Adopting the child would not only allow the child to inherit from the stepparent individually, but also from the stepparent’s family members where a biological child normally would.The Benefits of Adoption for Health Insurance
Some insurance carriers will not provide health insurance coverage for stepchild who has not been adopted by the stepparent. This is especially important to note for children with special needs or requirements.
Should I Hire an Attorney for Assistance with the Step-Parent Adoption Process?
The adoption process is complex. Speaking with a skilled family law attorney in your state will help you understand your rights and obligations involving stepparent adoptions.