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Stepparent Adoption Rights

There are five different types of adoptions in California: Stepparent or domestic partner adoption, independent adoption, agency adoption (including juvenile dependency court adoption), adult adoption, and international adoption (simultaneously conferring adoption and U.S. citizenship status).

The most common type of adoption sought in California is a stepparent adoption. This article answers some common questions related to stepparent adoptions. For information on other types of adoptions, please contact our adoption lawyers for a free consultation.

Stepparent Adoption Defined: A stepparent adoption is a legal process whereby an adult, who is not the biological parent (birth parent) of a minor child, but who is legally married to the legal parent of the minor, legally assumes parental rights and responsibilities for the minor child.

Note: A person who marries another person who has minor children is called a “stepparent.” However, a stepparent who does not legally adopt his or her minor stepchild has very limited rights and responsibilities related to that stepchild.

For example, if Heather marries Ted, and at the time of Heather and Teds' marriage, Ted has a minor child from a prior relationship, then Heather will become the minor child’s stepparent at the time of Heather and Teds' marriage. However, Heather will have no rights or responsibilities to child custody, child support, and/or child visitation, as those rights and responsibilities relate to Ted's minor child, unless and until Heather legally adopts Ted's minor child, if ever.

Note: In some limited situations, where a stepparent and his or her minor stepchild have a close relationship, and where the best interest of the minor child dictate, a judge may grant some visitation rights upon the stepparent even if the stepparent never legally adopted his or her stepchild and even if the child’s legal parent objects to the stepparent’s request for child visitation.

Other options for non-adoptive stepparents to maintain contact with a stepchild after divorce, legal separation, or death of the minor child’s legal parent, include: request for child custody rights, request for Letters of Guardianship of the Minor Child, emancipation of the minor (legal separation of the minor from the custody of his or her legal parent), and more.

Legal Parent: A legal parent is not always a biological parent. Sometimes, a minor child’s legal parent is a person who either signed a declaration of paternity after the child’s birth and there is no objection to that declaration within a specific time period (usually two years from the child’s birth), or the person is the minor child’s adoptive stepparent.

For example, if a minor child’s adoptive stepmother remarries, and the child’s biological father dies, then the child’s new stepfather may seek stepparent adoption. In this situation, the minor child may have two adoptive stepparents and neither stepparent is the child’s biological parent.

Rights & Responsibilities Conferred: Once a stepparent adoption is completed, the adoptive stepparent will have all the legal rights and responsibilities as a legal parent, including the following rights and responsibilities:

  • Right to raise an adopted child;

  • Right to receive child support for the adopted child;

  • Rights to visit with the adopted child;

  • Right to join in decision making for the child [Child Custody Rights] (i.e. making decisions for the adopted child regarding health, medical, dental, travel, education, extra curricula, religion, discipline, etc.);

  • Right to inherit from the adopted child;

  • Right to pursue civil damages on behalf of the child (lawsuit for injury to child from another person or agency’s intentional or negligent conduct);

  • Responsible for the adopted child’s financial support (i.e. food, shelter, clothing, necessary travel expense, health insurance, dental costs, etc.);

  • Responsible for the adopted child’s physical security (i.e. keep child out of harm’s way: child abuse, child neglect, dangerous circumstances, etc.);

  • Responsible for adopted child’s torts [Civil Wrongs] (i.e. child’s negligent or intentional conduct that leads to financial injury for himself, herself, and/or others, etc.), and more.

Note: The adoptive stepparent’s rights and responsibilities are conferred upon the adopting stepparent at the moment the judge agrees to the stepparent adoption. Also, a legal parent’s rights and responsibilities are terminated along with the legal parent’s termination of parental rights (except for financial liabilities incurred before the termination of parental rights).

For example, if a biological mother of a minor child, who is subject to a stepparent adoption, agrees to the stepparent adoption and agrees to have her (biological mother’s) rights terminated, then the parental rights of the biological mother are severed and permanently terminated at the moment the stepparent adoption is approved by the court. Simultaneous to biological mother’s termination of her parental rights, the child’s new adoptive stepparent is conferred all of the right and responsibilities of a legal parent to the child. However, if the child caused injury to a person before the stepparent adoption occurred, then the child’s biological mother (and possibly others), is the person who might be financially responsible. The new adoptive stepparent does not “absorb” that liability by virtue of the stepparent adoption. The same is true for child support arrears owed by the child’s biological mother.

Note: A legal parent, whose parental rights have been terminated concurrently with a stepparent adoption, may petition the court to seek orders granting him or her child visitation rights to the minor child, so long as visitation of the minor child by the parent whose parental rights were terminated is in the best interest of the child.

In fact, there is a legal form that a legal parent and proposed adopting stepparent(s) may sign that does both of the following: 1) acknowledge the legal parent’s request for his or her parental rights to be terminated, and 2) acknowledge the proposed adopting stepparent agreement to provide visitation of the minor child to the legal parent whose parental rights are to be terminated. Of course, no person may be forced to sign such as legal form, but the point is that a legal parent, whose parental rights are terminated, is not necessarily barred from child visitation rights to his or her child who is the subject to the termination of parental rights (at least not in a stepparent adoption case).

Note: A stepparent adoption is permanent and cannot be revoked except in cases of fraud or legal defect that is discovered within five years of the adoption. Even after a divorce or legal separation, an adoptive stepparent maintains rights and responsibilities to a legally adopted stepchild.

The Legal Process: The legal process of a stepparent adoption includes preparing, filing, and serving stepparent adoption forms. This includes preparing declarations and referral letters, obtaining the consent of the birth parent (or court approval without the birth parent’s consent), undergoing investigations and evaluations, and attending court hearings.

Important: If the minor child’s legal parent is unknown or deceased at the time of the proposed stepparent adoption, then notice to that person is obviously waived (unnecessary); however, if the minor’s legal parent, biological or otherwise, is alive and his or her whereabouts are known, then that legal parent must receive notice of the proposed stepparent adoption. This is true even if the legal parent agrees with the proposed stepparent adoption or his or her objection would otherwise be futile (i.e. abandonment of his or her minor child).

Stepparent Adoption Legal Forms: The legal forms required for a stepparent adoption are listed on this page at Adoption Forms at right. It is important to understand that the legal forms do not provide information on how to draft persuasive declarations, present evidence, object to the introduction of negative evidence, conduct investigations, or provide information on court procedures and rules.

Other Requirements: In addition to the legal forms that must be used in requesting stepparent adoption status, the “petitioner,” or person seeking the stepparent adoption, must attend classes that address the stepparent’s concerns. The stepparent classes are designed to teach the petitioner the stepparent adoption process, the rights and responsibilities that will be imposed upon the stepparent after the stepparent adoption process is complete, and how the stepparent and legal parent of a child should handle questions from their children about the process.

Non-Consent of Birth Parent: Sometimes the birth child’s parent will consent to a stepparent adoption. If the birth parent does not consent to the stepparent adoption the court may nevertheless terminate the birthparent’s rights and allow the stepparent adoption. Whether or not the court will grant a stepparent adoption without the consent of the birth parent depends several factors, including, but not limited to, the following:

  • The suitability of the stepparent to adopt a child;

  • Whether or not the birth parent maintains a relationship with the child, including financially supporting the child (abandonment issues, see below for more information); and/or

  • Whether or not the birth parent is physically and/or emotionally unfit to parent his or her child and/or permanently disabled by addiction to drugs and alcohol, and more.

Note: A parent who cannot afford to care for his or her child is not considered unfit to care for a child. Rather, that parent, who cannot financially afford to care for a child, should seek the assistance of government programs that may financially assist him or her.

Note: A legal parent’s willful lack of contact with his or her child, along with the willful failure to support the child, is presumed abandonment of the child. Abandonment of a child is generally good grounds for terminating a parent’s rights (and responsibilities), so long as another person is ready to fill that abandoning parent’s role as the child’s legal stepparent (or guardian).

Lost or Deceased Legal Parent: The proposed adopting stepparent(s) must demonstrate to the court that he or she did everything a person could reasonably do in order to find the child’s legal parent(s) and notify him or her of the proposed stepparent adoption. If the proposed stepparent does not make this showing, then the court will not move forward with the stepparent adoption. The reason for this is clear: if the legal parent does not know that his or her rights to a child are about to be affected by the proposed stepparent’s adoption, then the legal parent will not have an opportunity to make an objection to that that proposed stepparent adoption.

Note: Finding and giving notice of a proposed stepparent adoption to a legal parent subject to case is not always easy. Sometimes the birth parent has been absent for years and/or does not want to be found. However, the adopting stepparent must make every reasonable effort to obtain the birth parent’s consent to the proposed stepparent adoption and/or give him or her notice of the intent to adopt his or her child. Also, if a biological mom knows the identity of her child's biological father, but she fails to inform the court of this information during a stepparent adoption by her husband, then she is committing fraud on the court.

Reasonable Search for Legal Parent: A reasonable search for the child’s legal parent may include, but is not limited to, the use of internet search, certified mailings to the birth parent’s last address, investigations through common friends and family of the birth parent, vital records search, Department of Motor Vehicle (DMV) records search, property records search (i.e. titles to land and transfers of land), voter registration rolls search, use of a private investigator, and more. Also, in the case of a deceased birth parent claim, the deceased’s birth parent’s certified death certificate should be shown to the judge by the proposed adopting stepparent.

Paternity Not Established: A father who has not established paternity (legal parentage) may lose his opportunity to object to a proposed stepparent adoption of his legal child (biological or otherwise). Of course, if the biological father of a child is unaware that he has a biological child, then he would not know that he has a right to either a paternity suit (parentage action establishing parental rights), or the right to object to the proposed stepparent adoption of his biological child. This is why the court allows a five year statute of limitations on fraud connected to stepparent adoptions. Also, a biological mother who knows, or reasonably should know, of her child's biological father, must give that person notice of the proposed stepparent adoption (some exceptions may apply where paternity was previously established).

Example Part I: If Heather marries David, and at the time of Heather’s marriage to David, Heather has a biological child from a prior relationship, then David might consider a stepparent adoption of Heather’s minor child. However, before David may move forward with his stepparent adoption of Heather’s minor child, David and Heather must show the adoption court that they did everything they could reasonably have done to discover the true identity of his stepchild’s biological father (so that David could request the consent of his stepchild’s biological father’s consent and/or give notice to his stepchild’s biological father of the proposed stepparent adoption). If David and Heather do not show this reasonable effort to the adoption court, the adoption court will not allow David to move forward with his stepparent adoption case.

Example Part II (Using the scenario from Example Part I): If Heather lies to either David, and/or to her minor child’s biological father, about the identity of her child's biological father, and the court discovers this lie, then the adoption court may reopen a stepparent adoption case up to five (5) years after the adoption has occurred in order to correct mother’s fraud, if possible.

Example Part III (Using the scenario from Example Part I): If the biological father knows that he is the biological father of a child who is the subject of a proposed stepparent adoption, and the biological father does not pursue his father’s rights in a paternity suit, then he may forever lose his rights to object to the proposed stepparent adoption.

Note: This is another good reason why a child’s legal mother (biological, adoptive, or otherwise) should normally give notice to any person she presumes or believes to be her legal child’s biological father (notice to biological father starts the clock on biological father’s right to object to the proposed stepparent adoption).

Caution: Giving notice of a stepparent adoption to a presumed or believed biological father of the child subject to the proposed stepparent adoption is an important legal step in the process, but this step could have severe negative legal consequences for a mother who does not want to her child’s biological father to know that he is the biological father. A person considering a stepparent adoption for his or her spouse should make no statement, written or otherwise, in any legal document, without first consulting with a family law lawyer familiar with paternity cases, child custody cases, stepparent adoption cases, and criminal defense (to avoid perjury and fraud charges related to prior and/or contemporaneous social benefits claims [i.e. welfare, WIC, cash aid, public health insurance, etc.].

Evaluation for Stepparent Adoption: The family law court will assign a social worker to make an evaluation of the adopting stepparent and the child’s proposed living environment. A private social worker may be employed for this purpose; however, using a private social worker for this evaluation normally requires prior court approval.

The purpose of the evaluation is mandated in stepparent adoption cases to ensure that the child will be adopted by a loving stepparent who can afford to raise the child in a safe home while also provide emotional and long term support. The evaluator will evaluate the following:

  • The evaluator will conduct a home visit to assess environment for sufficient size and cleanliness to accommodate the proposed adopted child;

  • The evaluator will assess the mental capacity of the stepparent and other children in the home;

  • The evaluator will also investigate for child abuse and/or domestic violence within the family dynamic;

  • The evaluator may make assessments based on the likelihood of the permanency of the marriage to ensure the permanency of the family support to the child;

  • The evaluator will investigate the legal parents’ whereabouts to ascertain whether or not those legal persons either consented to the proposed adoption, object to the proposed adoption, and/or have been properly notified of the proposed adoption, and more.

Note: Information declared to the court’s investigator, as it relates to evaluating the stepparent’s proposed stepparent adoption, is usually given under oath. Therefore, if a child’s legal parent lies about the identity, and/or whereabouts, of any presumed or believed biological father, then the person who made those false statements could be charged with felony perjury (making false statements under oath with knowledge that the statement is false). Also, false statements made to an evaluator during a stepparent adoption evaluation, as those false statements relate to the identity of the minor child’s biological father, could give the child’s biological father, who did not know of his paternity at the time of the proposed stepparent adoption, a right to object to the proposed stepparent adoption for up to five years after the adoption. Always contact a lawyer before proceeding on any stepparent adoption. 

Stepparent Adoption Hearings: The court hearing for a stepparent adoption can be short or very complicated depending on whether or not the legal parent(s) consents to the stepparent adoption. If the legal parent(s) consents, and the social worker’s analysis is positive, the adoption hearing is relatively simple; the judge will order the birth parent's rights to be terminated and those right (and responsibilities) will be legally assumed by the adopting stepparent.

If the birth parent does not consent, or the social worker does not have a positive report, then a trial may be conducted to determine whether or not the court will approve the stepparent adoption without the consent of the child’s legal parent(s), and/or without the social worker approval. An adoption attorney will prepare the adopting stepparent for in-court testimony under these circumstances. 

Court Costs: The costs associated with a stepparent adoption include costs for a criminal background check, Cardiopulmonary resuscitation (CPR) classes (if ordered), filing fees (Approximately $1,000 in San Bernardino and Riverside Counties), private social worker (if retained), and adoption attorney fees.

Note: It is illegal to negotiate a payment to the child’s legal parent (usually birthparent) in exchange for his or her consent to a stepparent adoption. Only adoption related assistance, such as costs associated with a mother’s pregnancy or travel, may be paid to a birth parent and all expenses paid to the legal parent (usually birth parent) must be disclosed to the court.

Note: Post-adoption contact agreements for visitation are enforceable if they are included in the final adoption order.

Criminal Convictions and Stepparent Adoptions: Misdemeanor and felony convictions can have a negative impact on a stepparent’s ability to legally adopt a child. This is especially true if the criminal conviction is for a crime against a child or is classified as a crime involving moral turpitude; however, every adoption case is decided on its own merits and a criminal conviction is not an automatic denial of a stepparent adoption. Contact a stepparent adoption attorney familiar with criminal law and procedure, or vice versa, to help clear your criminal history, or to assist in resolving the negative impact that a criminal conviction can have on the stepparent adoption process. 

Nullity of Marriage and Stepparent Adoptions: An annulment of a marriage is the legal equivalent of voiding the marriage as though the marriage never took place; however, a stepparent adoption for a putative spouse (“apparent” spouse who did not have knowledge of his or her spouse’s marriage to another person [aka “Bigamous marriage]) will not likely be undone with the declaration of void marriage. 

This is similar to other laws that protect putative spouses after annulment. In practice, a nullity of marriage is usually, but not always, considered “voidable,” and not necessarily “voided.” This means that the statute of limitations on obtaining most annulments will expire before a person becomes close enough to his or her stepchild sufficient to pursue a stepparent adoption.

Also, the court’s investigator is likely to discover the petitioning legal parent’s bigamy (or incestuous) marriage before the proposed stepparent advances to a recommendation for the court. In any event, if the petitioning legal parent's bigamous marriage is not discovered, and the adopting stepparent’s marriage is subsequently voided (annulled) from the beginning of the marriage, then the stepparent may usually find redress in pursuing child custody and/or child visitation rights to the same minor child that he or she previously believed to be his or her “adopted stepchild.”

Lawyers for Stepparent Adoption: Lawyers for persons petitioning the court for a stepparent adoption are not provided at no cost. Lawyers for persons objecting to a proposed stepparent adoption may be provided by the court at no cost (depending on the income of the party objecting to the stepparent adoption). This means that the person who objects to a stepparent adoption will usually have an attorney that represents him or her in court even if the petitioners themselves (persons who are asking the court for the stepparent adoption) do not have an attorney to represent them. If possible, always seek the advice of an attorney familiar with stepparent adoptions before filing for such a request.

For more information on stepparent adoption cases, contact our adoption lawyers today. We can help you realize your dream of adopting the child you love. We offer payment plans and our adoption attorneys are available six days a week to answer your questions (Mon – Sat). We also offer services related to other family law issues, including: Domestic Violence Restraining Orders (DVRO), Child Abuse Central Index (CACI) Defense, Fathers’ Rights, Child Custody, Divorce, Legal Separation, Annulment of Marriage, Bigamy Defense, Abducting a Child Defense, and more. Call today.


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