The relationship between stepparents and stepchildren has been represented in movies and books as generally a miserable one. Arguably, the most famous representation is the Wicked Stepmother from Cinderella. She married Cinderella’s father, a widower, who then passed away, leaving the Wicked Stepmother saddled with the unwanted responsibility of raising Cinderella.
In reality, there are many wonderful and supportive stepparents who have developed strong bonds with their stepchildren. In some instances, the stepparent, over time, fills the role of a missing parent who has passed away or chosen not to be involved with the children.
The stepparent, however, does not have a legal relationship with the children. This can create a significant problem if the stepparent’s spouse – the birth or adoptive parent of the children – becomes incapacitated or passes away. Without a legal relationship, the stepparent lacks the authority to make decisions for the children or retain custody of them.
Stepparent adoption is a viable solution for certain families. The adoption process begins when a stepparent and his or her spouse, who is the birth or adoptive parent of the children, join together in a petition filed with the court asking the court to approve the stepparent’s adoption of the children. The stepparent and his or her spouse are the petitioners and the other birth or adoptive parent is the respondent. The petition for adoption can also include a request for the children’s last name to be changed.
The adoption process can be relatively simple under any one of the following circumstances:
- the respondent provides his or her written, notarized consent to the adoption;
- the respondent is deceased;
- the respondent is the acknowledged, adjudicated, presumed, or putative father and denies paternity of the child;
- the petitioner-birth mother provides written, sworn testimony that she has used reasonable efforts to determine the father’s identity and has been unable to do so;
- the child is the result of a surrogacy and the respondent-birth parent provides his or her written, notarized consent;
- the petitioning parent is the parent by adoption and was not married at the time the child was adopted; or
- the child who is the subject of the adoption is at least 14 years old and has lived in the stepparent’s home for at least 5 years.
In any of the above situations, the court can grant the adoption without a hearing and without involving the department of social services or a guardian ad litem (a court-appointed attorney for the child).
If the court refers the case to the local department of social services and/or appoints a guardian ad litem, a hearing will be scheduled. Prior to the hearing, a case worker from the department will investigate the family and file a report with the court that includes his or her findings and recommendations. The guardian ad litem, who is an attorney appointed by the court to represent the child’s best interests, will meet with the family, the child, and other people involved in the child’s life, and provide his or her findings and recommendations to the court. The petitioners will also have an opportunity to present testimony and evidence to the court in support of their request for the adoption. The court will then determine whether the adoption should be granted.
The court can grant a stepparent adoption over the objection of the respondent. If the respondent will not consent to the adoption, a hearing must take place for the court to determine whether the respondent is withholding his or her consent contrary to the best interests of the child. Specifically, the court must consider all relevant factors, including:
- the birth parent’s efforts to obtain or maintain legal and physical custody of the child;
- whether the birth parent is currently willing and able to assume full custody of the child;
- whether the birth parent’s efforts to assert parental rights were thwarted by other people;
- the birth parent’s ability to care for the child;
- the age of the child;
- the quality of any previous relationship between the birth parent and the child and between the birth parent and any other minor children;
- the duration and suitability of the child’s present custodial environment; and
- the effect of a change of physical custody on the child.
If, after considering all of the above factors, the court finds that the respondent is withholding his or her consent contrary to the best interests of the child, the court can grant the adoption and name change without involving the local department of social services.
When the adoption is finalized, the stepparent is no longer a stepparent but is legally the child’s parent.
If you are wondering whether a stepparent adoption is right for your family, schedule a consultation with one of our attorneys.
