As a family law attorney in Pensacola, Florida, I have been fortunate to handle many adoptions, including public adoption, private adoption, and step-parent adoption. It is perhaps one of my favorite case types. Most adoptions are fairly straight forward and can be processed relatively quickly, and adoptions usually end with a joyful and happy occasion. At the conclusion of an adoption, I often feel like it’s a birthday for the family. However, in the case of step-parent adoption, it doesn’t always go so smoothly.
In the event that the child to be adopted was born out of wedlock, the first step is to establish paternity. Simple, right? “We’ll just get a DNA test.” Maybe. Three scenarios may complicate the establishment of paternity, even with a DNA test. First, if the mother was married when the baby was born, even if both her husband/ex-husband and the presumed father are aware that the baby is not the (ex)husband’s, under Florida law, the (ex)husband is technically considered the father until proven otherwise – every child born to a married mother is presumed to be the child of her husband. If the mother was not married at the time, paternity still must be proven to establish who is actually the father. Even more complicated is if the mother has no idea who is the biological father, in which case providing notice of the adoption petition becomes quite complicated. In most cases, paternity probably will have already been established, either through a divorce action or a petition to establish paternity and child support.
Termination of Parental Rights
The reason paternity must be established is because in order to create a step-parent adoption, the biological parent’s parental rights must be terminated. Such is accomplished either by consent of the biological parent or by trial, proving that the biological parent has abused, neglected, or abandoned the child to such an extent that his or her rights should be terminated. Termination of parental rights in Florida is considered the death penalty of parenting, and courts take it very seriously. If the bio parent will not consent to the step-parent adoption, the assistance of a Florida family law attorney will almost always be necessary. Whether abuse, neglect, or abandonment in a particular case rises to a level for which a court would terminate parental rights is highly case specific, and just as in a divorce or child custody case, one should never assume the potential for success based on what happened “in a friend’s case.” I repeat: EVERY CASE AND FAMILY IS UNIQUE, and it doesn’t matter what happened in someone else’s case. Even long-term incarceration may not be enough to terminate parental rights under a theory of abandonment or neglect. Termination of parental rights completely severs any legal tie between the child and parent, including the duty to pay child support and inheritance rights.
In any adoption, the duty to pay child support ends once parental rights have been terminated. I have often been asked whether child support arrears can be waived by the parties, and while there are mechanisms that allow waiver of past child support obligations, the case law on this issue is varied. Some courts have held that child support is the right of the child, and only the child has the authority to waive arrearages, after reaching the age of majority. Generally, I do not recommend attempts to waive past child support obligations, but sometimes, it may be the only way to secure consent to the adoption and avoid a trial to terminate parental rights. Ultimately, whether to waive past child support arrearages will depend on the particular circumstances of the family.
Severed Ties/New Ties
Upon final order of step-parent adoption, all legal ties between the biological parent and the child are severed. This includes ties to extended family. For example, if the father whose rights are terminated has wealthy family from which the child may inherit, the termination of parental rights may destroy that inheritance. Similarly, if a child is killed in an accident, the former parent will have no authority to bring a wrongful death case. After step-parent adoption, those legal rights exist between the child and the step-parent. That includes the step-parent’s duty to pay child support if he or she divorces the biological parent. It is as if the biological parent never existed, and the step-parent was always the parent.
Every family is unique, and no one should ever assume that a step-parent adoption case will operate quickly and efficiently. Yes, the Florida Family Law forms are online, but many variables must be considered, particularly the likelihood of the biological parent consenting to the adoption and the long term consequences of destroying the legal connection between the parent and child and transferring those rights and obligations to the step-parent. It is always best to consult a licensed family law attorney, and I am available in Pensacola, Florida for free consultations.