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Steps in Pursuing a Stepparent Adoption

Stepparent adoptions are a relatively easy process in Florida so long as the stepparent is the spouse of the child’s parent. Florida law once prohibited gays from adopting children but that provision was struck down as unconstitutional as violating the due process rights of the person wishing to adopt.

Still, prior to the 2014 US Supreme Court decision that allowed same-sex couples to legally marry, a partner of a gay parent was unable to adopt the parent’s child under traditional means since gay marriages were still invalid. But since the court decision that legalized same-sex marriages in all 50 states, that hurdle no longer applies.

Besides obtaining consent from the required parties, the only prohibition on stepparent adoption is if the stepparent has a physical disability that prevents him or her from being an effective parent. This might include someone who is under constant supervision and unable to understand or react to daily situations. A spouse who is bedridden or has dementia might not be eligible to adopt.

Consent

Generally, both birth parents must consent to the adoption by the stepparent or from the person who has recognized custody of the child. Specifically, this includes:

  1. The child’s mother
  2. The child’s father if:
  • the child was born or conceived while the father was married to the mother, or
  • he had adopted the child, or
  • he has been determined to be the father by court ruling, or
  • an affidavit of paternity was filed, or
  • the father was unmarried but acknowledged in writing his paternity and filed it with the Office of Vital Statistics

A child who is at least 12 years of age needs to give consent, though the court can waive that in some instances. The child’s birth certificate needs to be submitted as well.

When Consent is Not Needed

Consent is not needed by a birth parent if that parent:

  • abandoned or deserted the child
  • has had parental rights terminated
  • was declared incompetent and restoration of competency is medically unlikely
  • unreasonably withholds consent
  • the parent has engaged in conduct that endangers the child’s safety, life or well-being including emotional health
  • the parent executed a surrender document witnessed by two persons (voluntary termination of parental rights)
  • the parent has been served with the petition and does not respond or appear at the adoption proceeding

Abandonment or desertion can be discerned when the identity or location of the parent is unknown and cannot be ascertained for at least 90 days. Should the parent be absent, the adopting parent does have to perform a diligent search to locate him or her over a 60-day period.

Unreasonable withholding of consent can be inferred when the parent has been unavailable for a prolonged time and the absence is not explained or the individual is incapacitated or the court determines there are other grounds that constitute unreasonable withholding of consent.

If consent is not received by the other birth parent, the adopting parent will have to file under Florida Statute Section 63.064 to terminate the other parent’s parental rights based on the factors given above for why written consent is not needed.

If the parent from whom consent is needed is deceased, a certified copy of the death certificate has to be provided to the court.

Forms

The parent who is giving consent needs to complete and sign before a notary a Consent and Waiver form 12.981(a)(1) and file it with the Joint Petition for Adoption by Stepparent, form 12.981(b)(1).

The Petition will require certain information, including the following:

  • child’s birthdate and place of birth
  • name being given to the child
  • how long the stepparent has resided with the child
  • reasons why the stepparent wishes to adopt the child

Court Proceedings

The adoption hearing is generally a perfunctory proceeding if consent has been given and all forms filed. If the other parent has not consented, that person’s presence is required or the court can rule that that parent has consented to termination of his or her parental rights.

Once the court orders the order approving the adoption, the other parent’s rights are terminated unless they were terminated in a previous order. Also, any existing child support order is terminated and that parent is not entitled to visitation and will not have any authority in making decisions affecting the child.

A new birth certificate is also ordered with the stepparent’s name along with the new name of the child, if applicable.

Consult a Florida Adoption Lawyer

Although many adoptions are routine, there are numerous ones that are not and may involve complicated issues regarding consent and termination of parental rights. If you are a stepparent and wish to adopt your spouse’s child, consult with an experienced Florida adoption lawyer regarding the process and if there are concerns about the other birth parent’s willingness to consent.