Stepparent Adoption Without the Consent of the Biological Father

Stepparent adoptions are the most popular form of adoption in the United States. This article looks at the scenario of a remarried birth mother whose husband wishes to adopt her child, his stepchild. The birth mother's ex-spouse and father of the child does not consent to the adoption. While this article uses a biological father whose consent cannot be obtained, the same law applies to either birth parent. 

Legal Process:

Adoption Request

To adopt a stepchild, certain processes must be followed. A stepparent first needs to file an Adoption Request with a Superior Court in the county in which they reside. The Adoption Request contains details about the adopting stepparent and the stepchild being adopted. Information regarding the nature of the stepparent's relationship with the child as well as information about the child’s other parents and guardians are relevant. After the Adoption Request is filed, it is added to the court's records. Filing the Adoption Request commences formal proceedings and triggers the next step in the adoption process. 

Investigation

This stage involves an investigation by a social services agency responsible for investigating and reporting back to the court. The investigation is primarily to determine whether the adoption is in the child’s best interests. If the child is over 12 years old, their consent to the adoption must be obtained. Once the social services agency has conducted the investigation, the findings are submitted to the court. 

Biological Father's Consent

For a stepparent adoption to be finalized, consent of the noncustodial biological parent is required. In this scenario, the consent of the biological father must be obtained before a stepfather can adopt his stepchild. If consent cannot be obtained, the parental rights held by the biological father need to be terminated by court action

so that they may be transferred to the adopting stepfather. The adopting stepfather then gains the legal rights of parenthood awarded by the adoption process. 

In an ideal situation, the biological father's consent is voluntarily given and the adoption proceeds. Here, consent involves the biological father agreeing to terminate his parental rights so that they may be transferred to the adopting stepfather. This results in the biological father giving up his rights as a legal parent, which includes his right to things such as custody and court-ordered visitation. It also, however, relieves him of any legal obligations associated with legal parenthood such as the payment of child support. If consent is given voluntarily, the adoption process can proceed quickly past this stage. Unfortunately, voluntary consent is not being given in this scenario. 

There are two primary reasons why consent from a biological father cannot be obtained. One is that he is unwilling to consent, and the other is that he cannot be located. If the biological father is unwilling to consent and wishes to fight the adoption, the adopting stepfather and the child’s mother must pursue legal proceedings to have the biological father’s rights terminated by the court. The biological mother and stepfather need to notify the biological father of the pending termination of rights. This is done by filing a petition with the court asking it to take steps to terminate the biological father's parental rights. Notice of that petition must then be served on the biological father so that he may prepare to plead his case in front of a Judge. Court proceedings regarding termination are then commenced and a hearing is scheduled to determine the outcome of the petition. Ultimately, a huge factor the Judge will consider is what is in the child’s best interests when deciding whether or not to terminate the parental rights of a biological father. 

Some issues with locating a biological father may arise due to him being absent for many years. Reasonable steps must be taken to locate him, such as sending a notice to his last known address, searching motor vehicle registration lists or obtaining county records where he may now be residing. Evidence of efforts to locate the biological father will likely be required by the court. If the biological father cannot be found after reasonable steps to locate him have been undertaken, the adopting stepparent can apply to the court to have the biological father's parental rights terminated. In some cases, the biological parent must be given notice of the pending case through publication.  In this case, termination is usually on the ground of Abandonment. 

Termination of Biological Father’s Parental Rights by a Court 

Terminating the parental rights of a biological father is a matter that the courts take very seriously. Courts have a high burden of proof, which is placed on the person filing. In this case, the person filing is the adopting stepfather.  In California, the most common grounds for terminating an absent parent's parental rights is abandonment. In making its determination, the court considers the stepparent's ability to provide a suitable home for the child as well as look at the parental history of the biological father. The parental history of the biological father determines the basis for terminating his parental rights. If the court is satisfied it would be in the child’s best interests for the rights of the biological father to be terminated, and that the birth father has abandoned the child as legally defined, it will order termination of his parental rights.

Abandonment 

In determining whether abandonment has occurred, a court looks at a variety of factors. These commonly include the timely payment of child support as well as visitation and the contact the biological father has with the child. The timeframe that must be proved for abandonment varies from state to state. In most states, it is a minimum of one year, where the child has been left in their birth mother's custody. In the state of California, section 7822 of the Family Code sets out the requirements for abandonment. These are if a biological father has not paid child support or had any contact with a child for one year. California also requires that the absent parent had the "intent to abandon," which can often be inferred from objective conduct.

Adult Adoption

The overarching principle behind the court's determination to terminate a biological father's parental rights is to assess what is in the child’s best interests. Factors like permanence and stability are considered by the court. Therefore, for the termination to be granted, the court must be satisfied it is in the child’s best interests to terminate the parental rights of the biological father. 

If a birth mother and stepfather are successful in having the biological father's parental rights terminated by the court, the adoption process can continue to the next stage, where an Adoption Order is received at an Adoption hearing.