Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Once the adoption is final, the adoptive parent(s) has/have all the legal rights and responsibilities of a parent-child relationship. The new parent-child relationship is permanent. An adoptive parent can be a stepparent or domestic partner of one of the birth parents, a relative of the child who has been caring for the child, or someone not related to the child by blood.
One of the most common adoption scenarios in California occurs when a stepparent adopts the child of the person that he or she has married. Marriage itself does not provide a stepparent with the legal rights and responsibilities associated with parenting a child. The additional step of having the family court approve the stepparent’s adoption of the stepchild is necessary.
Procedure for Termination of Parental Rights in Stepparent Adoptions in California
A stepparent adoption begins with the filing of a petition for the adoption. The petitioner is the stepparent who wants to adopt the child, and the case is generally filed in the county where the petitioner lives (Family Code 9000 (a)). Usually this is the same county where the child resides.
However, in order for a child to be adopted by a stepparent, the parental rights of their other biological, presumed, or natural parent must be terminated. A parent can lose his or her parental rights either voluntarily or involuntarily.
Terminating a parent’s rights is not easy, and for good reason. Parents have a fundamental constitutional right to parent their children and children have a constitutional right to a parent-child relationship.
The process involved in terminating a parent’s rights and adopting a child is not always straightforward, and without a thorough understanding of this area of law it can be frustrating and confusing.
Whether you are a stepparent thinking about adopting your stepchild, a parent wondering if your spouse can adopt your child, or a biological parent thinking about terminating your parental rights, you are in the right place.
Voluntary Termination of Parental Rights in Stepparent Adoption
California family courts only allow parents to terminate their parental rights voluntarily under certain circumstances. Generally, it is only possible to give up parental rights for the purposes of adoption.
If a parent wishes to voluntarily relinquish parental rights for the purposes of adoption, there is a process in place that requires all parties involved to provide the court with adequate notice.
If one parent will retain custody and the custodial parent’s new spouse or partner legally adopts the child, the court will need to perform a review process to ensure the adoption is in the child’s best interests. It is also possible for a parent to relinquish parental rights by refusing to respond to a request for termination of parental rights and/or signing a relinquishment of parental rights form.
Many courts in California have a local form for this purpose, and there is a form that can be used (if you can find it) from the California Department of Social Services, but having closely studied the adoption and freedom from parental custody and control provisions of the Family Code, it does not appear that this form, or any others available online, contain the language that seems to be required for termination of parental rights and consent to a stepparent adoption.
For this reason, the knowledgeable adoption attorneys of Talkov Law have created a document to assist families and make this complicated process a little easier.
This consent form is drafted for cases meeting the abandonment criteria of Family Code § 7822 (a)(3) and § 8604 (b), (c).
When the Biological Parent Consents to Termination of Parental Rights
After the initial petition is filed by the stepparent seeking to adopt his or her spouse’s child, the documents must be served on the biological parent. Once served, the other parent can sign a form in the presence of the court clerk in their county acknowledging their consent that their parental rights are to be terminated, or in the presence of a notary, probation officer, etc.
The biological parent can also appear in court on the hearing date to acknowledge their consent, or they can inform the social worker conducting the investigation that they consent. The forms are filed and at the hearing date, the court will terminate the parent’s rights and set a further hearing on the adoption (by this time, the social worker will have completed their report and recommendation).
How to Voluntarily Terminate Parental Rights in Stepparent Adoptions
If the noncustodial parent consents to the adoption and to terminate his/her rights and he or she lives in California, then that parent will need to sign a document consenting to the adoption. The consent document varies from county to county, and is often a local court form.
Alternatively, a pleading can be drafted with the language necessary to consent to the adoption. This document must be signed in the presence of an official court investigator, clerk, or notary public.
Uncontested Stepparent Adoptions
By consenting to the termination of parental rights, the noncustodial parent is giving up his or her rights to visitation with the child and other rights associated with parentage. That parent would no longer be able to pursue legal visitation rights via a court order. By giving up his or her rights in a stepparent adoption, however, the noncustodial parent will become unburdened from certain legal obligations such as being required to pay child support.
Involuntary [Loss] Termination of Parental Rights in Stepparent Adoptions
The other way a parent’s rights can be terminated is involuntarily. Several circumstances may lead to a parent involuntarily losing their parental rights. Typically, the conditions include abuse, neglect, or abandonment of the child.
Examples of reasons a parent may involuntarily lose parental rights are:
- Physical abuse or sexual abuse of the child.
- The commission of certain felony offenses.
- Long-term mental illness or mental incapacity.
- Long-term substance abuse.
When the Biological Parent Will Not Voluntarily Consent to Termination of Parental Rights
If the noncustodial parent does not want to consent to giving up his or her parental rights, then that parent will need to be notified of the pending petition for termination of rights and given a chance to plead his or her case in front of a judge against termination.
Stepparent adoption cases get extremely difficult when the biological parent that is the “responding party” to the case does not consent to their rights being terminated. The biological parent’s fundamental constitutional right to parent their children creates a substantial presumption against termination. Unless there is a very serious problem with the biological parent or with the parent-child relationship, the court will not consider terminating the biological parent’s rights.
Contested Stepparent Adoptions
In order to terminate parental rights in family court, a petition to declare the child free from the parental custody and control of the biological parent must be filed and served on the biological parent. In the event the biological parent cannot be found, the petitioning party is expected to take reasonable steps to locate the biological parent and give them reasonable notice of the pending action. If the parent cannot be located, detailed evidence will need to be presented to the court regarding the steps taken took in locating and/or obtaining consent from the other parent.
How to Involuntarily Terminate Parental Rights in Stepparent Adoptions
In contested stepparent adoption cases, the respondent parent has the right to have an attorney appointed to represent their interests. The family court will routinely appoint an attorney to represent the responding biological parent. In these cases, the court will usually set a pretrial conference date and parties may conduct their discovery.
Once discovery is completed, the court will set trial and hear evidence on the issue of whether the biological parent’s rights should be terminated because the respondent parent has the right to a trial.
If there is not a “prima facie” case to terminate the biological parent’s rights (i.e. none of the statutory grounds allowing the court to terminate parental rights is set forth in the initial petition), the court will dismiss the petition.
Assuming the petition properly sets forth a prima facie case to terminate the parent’s rights, the parties will each have the opportunity to present evidence and argument at trial in favor of their respective positions. The social worker’s report will have been submitted to the court by the time of trial, and the social worker will most likely testify. Any other relevant witnesses will also need to testify, and any other relevant, admissible evidence will be presented at that time.
In making its determination on termination, the court will consider the ability of the stepparent to provide a suitable home for the child as well as the biological parent’s fitness and history as a parent, which can including looking at instances of domestic violence, payment of child support, drug and alcohol abuse, and ongoing presence (or lack thereof) in the child’s life.
After the trial, if the court determines that there is not sufficient evidence to warrant terminating the biological parent’s rights that will be the end of the case. If the court does sever the biological parent’s rights, there is a waiting period to allow for an appeal, and a further hearing will be set thereafter on the adoption (which will be approved because the report will already have made the recommendation).
It is at the final adoption hearing where the child is brought to court, the adoption decree is signed, and the celebration occurs!
Is There an Investigation Process for Stepparent Adoptions?
It may seem unnecessary, especially if the biological parent has fully consented to terminate his/her rights, but there is still an investigation process in stepparent adoptions.
Notably, Family Code 9001 (a) states:
Except as provided in Section 9000.5, the probation officer, qualified court investigator, licensed clinical social worker, licensed marriage family therapist, private licensed adoption agency, or, at the option of the board of supervisors, the county welfare department in the county in which the adoption proceeding is pending shall make an investigation of each case of stepparent adoption.
The stepparent/petitioner can either hire a private investigator (at his/her own cost) or the court will appoint a social worker to complete an investigation as to whether the court should approve the adoption. The investigator will interview both biological parents, the stepparent, and child. They will conduct background checks and sometimes do a home visit. The social worker will draft a written report and provide it to the court recommending either adoption or not.
Restoring Parental Rights – Can A Parent Change Their Mind About Terminating Their Parental Rights?
It is very difficult, and generally not possible, to restore parental rights after voluntary or involuntary loss of those rights. California law does not allow a parent who has lost his or her parental rights to petition for restoration of those rights.
There is a limited circumstance where the child can petition the court to reinstate the parental rights of a parent, but these cases are few and far between. There is typically no way to restore parental rights following an adoption. This is not the case when the child is the the subject of a guardianship proceeding rather than an adoption, however. This is one of the main differences between guardianship and adoption in California.
Contact A Skilled Adoption Attorney For the Best Results
An adoption attorney can help parents, future parents, and children address parental rights issues. Ultimately, anyone with any concerns about his or her parental rights or the loss of those rights should speak with an experienced family law attorney as soon as possible. Contact Talkov Law’s experienced family law attorneys either online or over the phone at (844) 4-TALKOV (825568) for a free consultation.