Divorce FAQ

Stepparent Adoption

The profile of the typical American family has changed over the years. With a divorce rate in the U.S. that continues to hover near 50 percent, second marriages are more common than they used to be. Many families include children who are not the biological children of one of the parent figures. Although the relationship between a stepparent and child can be just like the relationship between a biological parent and a child, it does not have the same legal status. In order to give a stepparent the same legal status, an adoption must occur.

The first question that may come to mind for a stepparent is, "Why do I want the legal status of a biological parent?" One of the most significant reasons for obtaining the legal status of a biological parent is that the stepparent can make important decisions for the child regarding healthcare, education and legal issues. Other reasons are: adoption can cement the emotional connection between the stepparent and child; adoption allows the child to inherit from the stepparent and his or her family as if the relationship were biological; and if the couple later divorces the stepparent has the right to seek visitation or custody rights.

In order for a stepparent to adopt a child, the stepparent must have the consent of the other biological parent (presumably, the parent that he or she is married to will not object). If the biological parent does not consent then the stepparent will only be able to adopt if the other biological parent's rights are terminated. The grounds upon which a person's parental rights can be terminated vary by state but generally they can be terminated for willful failure to support the child, abandonment or unfitness to parent. Termination of parental rights is not something that is done lightly.

In a case involving a biological father's rights, there are some alternate ways to achieve termination of his parental rights. The man is normally presumed by law to be the father of the child if he is married to the mother at the time of the birth. Therefore, if the man is not married to the mother at the time of the birth then his legal status as the father must be shown in other ways. States can have other criteria that raise a presumption of fatherhood, such as marrying the mother after the birth of the child and being named as the father on the birth certificate. When there is no legal presumption of fatherhood the rights of the alleged father are easier to terminate.

Termination of the biological parent's parental rights means that the biological parent gives up the right to visitation and to make decisions regarding the welfare of the child. This is a lot to ask from a biological parent who is involved in the life of the child. Adoption by a stepparent may be better suited for situations where the other biological parent is absent or is unfit. Termination of parental rights also cuts off certain obligations. For example, the biological parent would no longer be required to make child-support payments once his or her parental rights are terminated.

The key considerations in a stepparent adoption are the level of involvement of the other biological parent, how important it is that the stepparent have legal guardianship over the child (the right to make decisions) and the emotional impact on the child. Sometimes adoption is not necessary to accomplish what a parent and stepparent want to accomplish. The parent and stepparent should discuss their goals with an attorney to see if adoption is the best way to achieve them.

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