Stepparent adoption, sometimes also called second parent adoption, is a common kind of adoption in which the spouse of one of the biological parents adopts the child. While the process is similar to other kinds of adoptions, there are some aspects that make stepparent adoptions unique. As with the other forms of adoption, the specifics will vary based on the state where you live.
The Process of a Stepparent Adoption
The process for stepparent adoptions is faster and easier than other kinds of adoptions in most states. If a child is going to be adopted by a non-family member, there are exhaustive screening procedures, such as in depth interviews, home studies, background checks, and other things. However, with stepparent adoptions, some states do not require as much investigation into the situation, especially if the child is already living with the stepparent or second parent. Due to this, stepparent adoptions usually go faster than a non-family adoption and may be much less expensive.
Consent to a Stepparent Adoption
The common scenario for stepparent adoptions is when one of the biological parents is not involved in the child’s life, and the other biological parent marries someone who steps into a parental role. Stepparent adoption allows the stepparent to have all of the rights and responsibilities of a biological parent, including possibly being liable for child support if the couple breaks up.
As with other adoptions, if a child already has two parents, both will need to consent to the adoption by a stepparent.
In order for a stepparent to adopt the child, both biological parents must give consent. In some states, the child must also give consent if they are over a certain age, usually around 10-14. Typically, the most difficult aspect of the consent process is getting the consent of the other biological parent. While the parent married to the stepparent will retain their parental rights after the adoption happens, the other biological parent will need to give up their parental rights. States will almost always only allow two parents to have parental rights to children. (However, this may be slowly changing, and there have been a few cases that have allowed three parents.)
An estranged biological parent may be comfortable giving up their rights because it may mean that they are no longer responsible for child support. Other biological parents may not want to give up their rights, or they may be impossible to locate. If the state has already terminated the biological parent’s rights to the child, their consent is no longer necessary.
Adopting Without Consent of the Other Birth Parent
There are some ways to effectuate a stepparent adoption even if the other presumed biological parent does not consent. However, states are required to take the parental rights of biological parents very seriously and will only allow stepparent adoptions without consent if the other biological parent is unfit, has abandoned the child, or is not actually the biological parent.
Parents can be found “unfit” if they are abusive, neglectful, or incarcerated, or if there are other circumstances that make them unable to parent safely. In most states, in order to prove unfitness, the other parent can ask the court to have a fitness hearing. At this hearing, the parent moving for the termination of the other parent’s rights has the opportunity to produce evidence proving unfitness. “Unfitness” is a high bar, however. If the other parent is found unfit, their consent is not needed for a stepparent adoption.
Even if a parent has not seen their child in over a year, a court might hesitate to determine that the child has been abandoned by that parent if they financially contribute to the child’s wellbeing.
Another way to have a stepparent adoption without the consent of the other biological parent is if the parent has “abandoned” the child. For “abandonment,” the parent must have not paid child support or contacted the child for a certain period of time, usually a year. If a parent is found to have abandoned a child, their parental rights can be terminated, and thus their consent is unnecessary for a stepparent adoption.
If the presumed birth parent is not really the biological parent of the child (this is almost always the birth father), their rights can be terminated. However, this needs to be proven in court. Different states have different laws about who is the “presumed” father if a baby is born. For example, if a woman is married and gives birth, her husband is automatically the presumed father. If he is not the biological father, and that is proven in court, his rights may be terminated. (However, this would usually give the proven biological father parental rights.)
While consent tends to be one of the thorniest aspects of stepparent adoptions, there are other hurdles that may arise. The laws of the specific state will govern the necessary requirements for a stepparent adoption.
Stepparent or Second Parent Adoption for Same-Sex Couples
Finally, same-sex parents often utilize stepparent or second parent adoption as a means of legally securing the parental rights of a non-biological parent, usually in cases where one parent has a biological relationship to the child and the other does not. Although the legalization of same-sex marriage theoretically brought with it a presumption of parentage for non-biological parents of children born during a marriage, many same-sex couples still pursue second parent adoptions to ensure that the rights of both parents are respected in all US jurisdictions, particularly those known to be less protective of LGBTQ rights.