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Termination of Parental Rights and Step-parent Adoption

Often times, a parent may re-marry after a divorce. In an effort to unify the new family unit, a stepparent may desire to adopt his new spouse/partner’s child from her previous marriage. This desired adoption, legally referred to as a stepparent adoption, at many times yields joyous outcomes, but the road to achieving the same is difficult and complex.

In order for a stepparent to adopt his new spouse/partner’s child from a previous marriage as his own, he must file a request for the same with the Court. After the requisite investigations are performed and completed, the stepparent must, among other things, obtain consent from the child’s non-custodial biological parent to terminate his parental rights to the child so that the stepparent can become the new parent.

This consent to “terminate parental rights” can be voluntary and executed pursuant to the requirements set forth in the California Family Code section 9003. However, there may be circumstances in which voluntary consent cannot be obtained from the non-custodial biological parent. For example, a biological parent may not be willing or available to provide such consent.

If voluntary consent cannot be obtained, the Court may recognize an “involuntary consent” of the non-custodial biological parent to terminate his or her parental rights by a variety of methods. For example, pursuant to California Family Code section 8604(b), if a biological parent deemed to be the non-custodial parent by a court order willfully fails to communicate with, care for, and support the child for a period of one year, the custodial parent may essentially consent to the stepparent adoption on behalf of the non-custodial biological parent after providing the non-custodial parent with notice.

A second example of involuntary consent falls under California Family Code section 7822, which states that a presumed parent under the law who has left the child in the other parent’s custody with the intent to abandon the child may be deemed by the Court to have abandoned the child, and therefore involuntarily consent to a termination of the parent’s parental rights. A finding that a parent has abandoned the minor child allows the Court to determine whether termination of that parent’s rights would be in the minor child’s best interest.

If you are a step-parent seeking to adopt your new spouse/partner’s child, and voluntary consent from the non-custodial biological parent is unavailable, you may be able to obtain involuntary consent to terminate parental rights pursuant to California law. However, making this determination is complex. If you are in a similar situation, please contact one of the experienced family law attorneys at Bremer Whyte Brown and O’Meara, LLP today to assist you with your adoption matter.

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