Article written by Bonnie Klein Rhoden, Esquire (you may contact Attorney Rhoden using the Contact form to the right)
I want to adopt my step child, what should I do?
Blended families are common today in Melbourne, Florida and other areas of Brevard County. Parents divorce and remarry, maybe one parent moves away, or perhaps a child wants to have the same name as his dad and step mom. Step-parents can and do adopt a step child.
Consider this hypothetical situation: Steve and Janice have been married for five years and have one child, a 2 year old daughter, Melissa. Steve and Janice have not been close since Melissa was born and they decided to divorce. The dissolution of marriage process resulted in an agreement, a Parenting Plan, that awarded Janice the majority of the timesharing (custody) and the home residence of the child, with Steve receiving timesharing with Melissa.
Then a number of years went by and Melissa got re-married to Ben after residing together for about six months before the wedding. Ben was wonderful with Melissa and continued to be a great father figure to the child. Steve had begun to drift away from Melissa since the divorce and within a couple years he no longer came to take Melissa for his timesharing. Ben and Janice talked about how Ben could adopt Melissa and it quickly became clear that there were many benefits to this for Melissa and the whole family. Janice and Ben are wondering how to go about the adoption and find the process confusing after researching online – how to do it? Who can do it? Where to start? Is an attorney necessary for Ben to adopt Melissa?
The Law and Stepparent Adoption in Florida
In Florida our laws allow for a stepparent to adopt his/her spouse’s child(ren) and while there is a specific process that must be followed it should not be problematic for the stepparent to adopt. The procedure is explained in the Florida Adoption Code or the statutes. An attorney is not required to complete an adoption like this in Florida however, couples like Ben and Janice may choose to work with an attorney to navigate the steps including documentation required by the court and the actual court hearing where a Judge must be shown specific facts upon which he/she can rule in favor of or against a stepparent adoption.
Eligibility of a Step Parent to Adopt
A couple wanting to adopt a step child must start at the beginning which is Florida Statute 63.042 where the list of who can and who cannot adopt a person within our state is located.
The process of stepparent adoption – or any adoption, for that matter – begins by evaluating whether the stepparent is legally allowed to adopt in Florida. Florida Statute 63.042 lists who is and who is not eligible to adopt someone in Florida. Prior laws and case law determined that homosexual persons (individual) were permitted to adopt but homosexual partners/couples were not able to adopt. The law then required the adopting person be the “spouse” of the child’s mom or dad. Fortunately the law has finally caught up to us and same sex marriages are recognized in Florida’s laws. Because of this advancement in Florida’s laws a persons same-sex spouse (even though same sex marriages are not yet performed in Florida!) is eligible to adopt his/her step child.
Hurdles that exist in qualifying to adopt in Florida include physical disabilities or handicaps that would prevent the person from being an effective parent such that a bedridden person might not be able to perform as a parent if he/she needs continuing care and oversight or a person who doesn’t understand the surroundings might not be able to perform.
How Do I Start the Step Parent Adoption Process
If you have made it this far the step parent seeking to adopt has decided he/she is eligible to adopt. The process for beginning the formal legal adoption procedure will begin with the stepparent filing a petition in the Circuit Court (here in Brevard we have the 18th Judicial Circuit Court). This can be done either with the biological parent joining the petition. This document is a legal pleading and is in essence your request to the court to approve the adoption. You will be referred to as Petitioner in the case – Petitioner is the person who initiates the case.
Your petition for the adoption must be a “verified” pleading which means you will have to swear to the accuracy of the contents of the petition and do so before a Notary Public.
The information required for the petition includes the following:
- The step child’s date of birth and location of birth.
- The name proposed for the stepchild if you with to change the child’s name.
- An explanation of the step child’s relationship with you including the length of time you have had physical custody of the child.
- Your name, DOB, and residential location including the length of time you have resided at that address.
- Information that demonstrates your ability to care for your stepchild – this includes many specific details and your adoption attorney can help you.
- Details about any other case where the biological parent(s) rights were terminated and you must provide the case number for that action. IF your situation does not have this type of position you must include 1) the name /info of any person who must give consent to the adoption is required (see the Florida Statute for a full description of who must give consent) 2) who has/has not consented to the adoption by the statutory requirements, and 3) if a person who is required to consent but such consent was not obtained an explanation to the court as to why his/her consent should not be required.
- And you must include a statement explaining to the Judge why you wish to adopt your stepchild.
Some other various documents must be completed and filed with the court in conjunction with your petition for adoption, to include:
- Providing a copy of all judgments that terminated a persons parental rights and/or copies of all necessary Consent documents.
- Proof of the occurrence of an interview with the child (if twelve or older) and that the court found that interview was in the best interest of your stepchild.
You may be asking what is the interview about? The interview with the child attempts to determine the child’s wish and also the court will review all recommendations (or report documents) that were Court ordered. There are more formal types of adoption that require reports and tasks not expected in a step parent adoption – unless the Judge determines one or more are necessary.
What If the Child’s Biological Parent Doesn’t Want to Consent? Can I Still Get Consent?
In this process the consent must either be given by the ‘other’ parent or the court can determine that parent’s consent is unnecessary. In your situation it is likely that at least ONE of the biological parents gives consent – usually that is the parent you are married to currently.
When (and if) the biological parents give his/her consent to the step parent adoption, they will give their consent in writing. Your lawyer can help you draw up the consent document so it comports with Florida Statutes. Requirements for a consent include identification of the parent who is giving consent (is it mom, dad, guardian, etc.), a statement that the parent signing is giving up parental rights, and demonstrate the signors understanding of the legal significance of his/her signature and that he/she may not have any right to see the child or participate in the child’s life. In step parent adoptions it is important to note that a “Consent” form is not necessary from the parent you are married to, the parent making you the child’s step parent.
If the parents in our earlier hypothetical situation are seeking step parent adoption the biological father may not want to give his Consent. He has the opportunity to be heard by the court and voice his position about why he disagrees with the adoption.
- When a biological parent has deserted his/her child and there is no way to identify the biological parent such as if a parent were to leave the child at a firehouse or hospital or has “abandoned” (according to the Florida Statute requirements) the stepparent does not have to obtain his/her consent but must be able to be prove abandonment.
- Getting a parents consent would not be required if a termination of parental rights case severed the biological parent’s rights. This is referred to commonly as a TPR and takes place when 1) the parent voluntarily and properly signs a Consent to terminate (sometimes referred to as a surrender of rights 2) the child has been legally abandoned by the biological parent (refer to the Florida Statutes for the requirements of abandonment), 3) the child is at risk due to behavior undertaken by the biological parent – this would be behavior that places the life of the child, safety of the child, or health of the child, 4) if the biological parent is in prison or incarcerated over a timeframe that exceeds the statutory limit, 5) a DCF case is taken to Dependency Court and the Judge determined the child is “dependent” but the biological parent was unable to complete a case plan as set forth by the court. Parental rights can be terminated also if the biological parent was properly served with the legal pleadings but ignores the matter and does not reply.
- If a biological parent is found incompetent by a court then consent should not be required (stroke, debilitating disease, coma, etc.).
And as one final point – the “father” of a minor child at the center of a step parent adoption must consent only under these circumstances (this is taken from the Florida Statutes) –
- He was married to the child’s mother when the child was born – making him the legal father
- The child was previously adopted by him – making him the legal father
- A Judge has heard a matter in court and determined he is the legal father
- The man has filed an “Affidavit of Paternity”
- He accepts he is the biological father of the child even though not married to the mother – this can allow him to be determined the legal father.
Consent and whether it is needed is an IMPORTANT part of the process. Without the required consents or proof of an exception the step parent adoption cannot go forward.
The attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC are experienced in the areas of family law including step parent adoption. For a free consultation with an attorney call us at 321-676-2150 or 321-631-0506 or use the contact form at the top of this page to email the office.