CAN MY NEW SPOUSE ADOPT MY CHILD?
Most children have both parents present in their lives. This is true where both the mother and father are married and live together with the child, and where the parents live separately because of divorce or for some other reason. In the latter situation, one parent is usually the primary caregiver of the child, taking the child to the doctor, enrolling the child in school, getting the child to and from school, etc. The other parent usually takes on less of the day-to-day tasks of raising the child, opting instead to pay child support to the other parent and spend weekends with the child.
There are situations, however, where one of the parents is absent from the life of the child. Often the parents were never married and were young when the child was born. Usually, but not always, the mother is the primary caregiver and the father either never developed a relationship with the child, or just slowly drifted away. The mother goes on with her life, raising the child as a single parent, eventually falling in love with another man and getting married. The new husband then takes on the roll of father, often being the only father figure the child has had. At some point the mother and step-father decide to make legal what is already occurring and have the step-father adopt the child. Such an adoption is appropriately called a “step-parent adoption.”
As a general rule, step-parent adoptions are the easiest and least costly type of adoption. Often the natural father will voluntarily relinquish his parental rights and join in the adoption, giving his consent and blessing. This is done by filing a joint petition for adoption and termination of parental rights. Both the mother and step-father will sign the petition as will the natural father. The petition must be signed under oath before a notary public. One attorney can usually draft the paperwork and have everyone sign the petition. The petition can be signed by each of the parties separately without the other parties being present. Once the petition is signed, it is filed with the court and the case set on the docket. In practice, the entire process can take place in as little as a week. In theory, it could be done in one day.
At the time of the hearing, the step-parent and their spouse will testify in court as to their desire to establish a parent-child relationship with the step-parent, and ability of both to raise the child. If the child is fourteen years old or older, the child must be present and consent to the adoption. The parent giving up parental rights does not have to be present in court. Often, family members are present at the hearing and the judge will allow pictures to be taken. It is usually a joyful occasion for everyone involved.
Sometimes the natural parent whose rights the other parent and step-parent seek to terminate, either cannot be found or will not consent to the step-parent adoption. In those cases, a petition to terminate the parental rights of the absent parent must be filed and served on that parent, if they can be found. If the absent parent cannot be found after exhausting all reasonable means to find them, notice can be published and the case proceed.
In such a case, the petitioners who seek to terminate the rights of the natural parent and complete the adoption process, must prove the other parent has abandoned the child by willfully failing to provide support for the child, or have meaningful contact with the child for at least four consecutive months immediately before the case is filed. Once the petitioners have convinced the judge the other parent has abandoned the child, the judge must find that the termination and adoption are in the child’s best interest. Once the judge is convinced, the absent natural parent’s rights will be terminated and the adoption allowed to proceed.
Although the law in Tennessee is uniform and applies to all courts, different judges handle these cases differently. It is important to contact an experienced adoption attorney in the area where you live to learn all the nuances of the particular jurisdiction where the adoption will take place.