How To Adopt A Family Member’s Child, According To A Family Law Expert

0
138

If you have a family member who is deceased or is unable to take care of their child, you may want to adopt their child.

While adoption is certainly a loving act, the legal technicalities can be complicated. So how do you go about adopting a relative’s child?

This post will give a general overview of the process of adoption. While the laws are similar in some states, every state has different adoption laws.

Consult an attorney in your state to find out specifically what you need to do in your state to adopt a child.

First, make sure that you are eligible to adopt a child.

In most states, any single adult or married couple may adopt a child. Often, a stepparent may adopt the biological child of the other parent.

Some states require you to be a certain age. In many states, you have to be at least eighteen; in some states, you must be 21 to adopt a child.

Many states have laws saying that you can’t adopt a child if you, or anyone in your household, has committed certain listed crimes such as domestic abuse or child abuse.

You must also determine which court has proper jurisdiction.

Every state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA regulates which court has jurisdiction in child custody cases.

The UCCJEA is quite complicated and beyond the scope of a post of this length.

However, the UCCJEA says that in general, a court has jurisdiction over an adoption case if:

  • The state is the home state of the child. “Home state” means the state where a child has lived for the last six months. Or if the child is less than six months old, the state where the child has lived since birth with a parent or person acting as a parent.
  • The state was the home state of the child within six months before you file the petition, and the child is now absent from the state, but a parent or person acting as a parent continues to live in the state
  • No other court has jurisdiction, or a court of a state with jurisdiction has declined jurisdiction, and the child, a parent, or person acting as a parent continue to live in the state, and substantial evidence is available in the state concerning a child’s care, protection, training, and personal relationships.

In addition to the UCCJEA, each state has its own laws on which county is the proper venue for an adoption case.

Check the UCCJEA and your local laws to see where you should file your case.

Because the laws of jurisdiction and venue for adoption cases are very difficult to understand, you should seek a qualified family law attorney in your state.

The U.S. Supreme Court has held that to adopt a child, you must give notice to both parents of the child. This is true even if the parents are not named on the birth certificate.

In some states, you don’t have to give notice to a parent if a court has terminated the parents’ parental rights.

If a parent is deceased, you don’t have to give them notice; however, you still must give notice to the living parent. If you’re not sure who the father is, you have to give notice to all persons who may be the father.

While state laws vary as to how this notice must be given, most states say that you must have a sheriff or licensed process server personally deliver notice to them or send them notice by certified mail.

If you’re unable to locate the parents, you may serve them by publishing notice in a newspaper in the county where the adoption is filed.

After you give notice to a parent, the parent has the opportunity to object to the adoption.

If the parent objects, the court must have a trial to see if the child is eligible for adoption without consent. At the trial, you have the right to present evidence and the parent also has the right to present evidence.

right of first refusal

Most states say that in order to adopt a child without the consent of the parents, you must show that the parents have done (or not done) some specified act.

For example, some states allow you to adopt a child without a parent’s consent if the parent has failed to support the child. Other state laws allow you to adopt a child without a parent’s consent if the parent has abused the child or a sibling of the child.

If the parent has consented then you don’t need to hold a trial.

In some states, a consenting parent must appear in court and state before a judge that he or she consents to the adoption.

The Indian Child Welfare Act (ICWA) states that if a child is eligible for membership in an Indian tribe, the child’s parent must appear before a judge and execute the consent in writing. Because ICWA is federal law, ICWA applies in every state.

After you’ve either received both parents’ consent or proven in court that consent is not necessary, you are ready to proceed with the adoption.

In many states, you have to do a home study.

In a home study, a licensed professional will enter your home and interview you and your family members, and write a report to the Court as to whether your family is suitable to adopt the child.

Some states also require you to compile a report on the child’s medical and social history and file this report with the Court. 

After you have completed all of the requirements, you must then ask the judge for a final hearing.

At the final hearing, the judge will determine if you have complied with all of the required laws for adoption. If you have, then the judge should sign a final decree of adoption. 

Congratulations! You now have a new child in your home. In all of the cases I have handled the happiest event for my clients has been the final adoption hearing.

If you think that adoption of a relative’s child is what is best for that child, go for it. You will be greatly rewarded.

***Author Bio: Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. Mr. Persaud has years of experience practicing in family and adoption law. Kyle Persaud received his B.A. from Oklahoma Wesleyan University and his J.D. from the TU College of Law.

LEAVE A REPLY

Please enter your comment!
Please enter your name here