What to do When an Ex won't Agree to a Stepparent Adoption
The Importance of Stepparent Adoption and its Benefits
Stepparent adoptions can provide enormous benefits to a child in a blended family. These benefits include emotional and legal aspects. For one, being adopted by a loving stepparent can make the relationship feel "official," and provide permanency and stability for a child. After a stepparent adoption, the child is legally the child of the stepparent (now parent), and that relationship comes with all the good and bad of having a biological child. For instance, an adopted child can inherit from his stepparent that dies without a will, whereas he could not prior to the adoption. On the other hand, if the child's parents divorce, the stepparent who adopted may be liable for child support and will have to deal with custody as an issue in the divorce!
Of course, the good outweighs the bad, and an adoption is a wonderful way to commit to being in a stepchild's life forever.
Stepparent Adoptions Cultivate a Sense of Belonging
Children of "blended" families can sometimes feel as if they are unwanted or an accidental byproduct of their parents' relationship. Unfortunately, many children feel as if they had some responsibility for their parents' failed relationship, even though relationships fail for many reasons, and almost never have anything to do with a child.
Nevertheless, being a child in a divorce or a parental split is traumatic and has consequences that survive into adulthood. Adoption by a stepparent can ease the trauma, because it shows the child that he is not simply baggage from a previous relationship. Adoption also signals that the child and stepparent are family and shows children that the stepparent is committed to be their parent forever, even if the parents' relationship falls apart. These signals are important to a child's self-esteem and emotional well-being, as most kids crave boundaries and authority and desire a "normal" nuclear family environment.
Just a note: all families are unique, and the most important feature of a family is that all members are loved, respected, and appreciated. Adoption is an act that demonstrates that love, respect, and appreciation to a stepchild.
Gaining Parental Rights
Aside from the benefits that stepparent adoptions provide for children in blended families, stepparent adoptions are unique from other Tennessee adoptions in that they allow one of the biological parents' rights to remain intact. In any other type of adoption, both biological parents' legal rights must be terminated as a prerequisite to adoption.
Once the adoption process is finalized, the adopting stepparent gains parental rights to the child as if the child was born to them. Among other things, this gives the adopting stepparent authority (and the responsibility) to care for the child, and to make decisions on the child's behalf. Essentially, the adopting stepparent gains the constitutional right to raise their child, which is a pretty big deal.
Administrative Advantages
We've discussed some of the emotional benefits that a stepparent adoption provides, but there are also some "administrative" advantages that the adopting stepparent gains as well. For example, the parent can now make medical and education decisions for the child, just the same as the biological mother or biological father. There's no need to seek permission from their partner or have their partner manage the child's life alone.
Another benefit is that the child can inherit property from the adoptive stepparent, even if he or she dies without a will. This is important, as without adopting, the child would only be able to inherit if specifically written into the stepparent's will. As legal family of the adoptive stepparent, the child becomes an intestate heir.
Finally, the child's name can be changed as part of the adoption process, providing an outward show of family that helps to strengthen the relationship.
Benefits for the Biological Parent who Agrees to the Adoption
On the other end of the adoption, the biological parent losing their rights also receives some benefits from the adoption. For instance, they would no longer be required to pay child support after the adoption and would have no further responsibility to the child (except for any child support in arrears). For some biological parents, it can be a blessing to be relieved of responsibility to a child, especially if the parents do not have a relationship. In certain cases, these benefits can persuade the biological parent to consent to the adoption.
Understanding the Legal Process of Stepparent Adoption in Tennessee.
Because we want to focus on stepparent adoptions and issues of consent, we won't go too in-depth into the process of adoption, but it is important to understand that the process of adopting a child involves two main steps: first, termination of the biological parental's rights, and second, the legal process of the actual adoption. If you want to learn more, head to our education section.
Termination of Parental Rights
The first step of the adoption process is to terminate the parental rights of the child's legal parent or biological parent. Terminations can be done by agreement, or by court order. There are several ways in which a legal or biological may have their rights terminated voluntarily, but if the termination is contested, it must be ordered after a trial.
In most adoptions, the rights of both legal and biological parents must be terminated prior to the child being available for adoption. However, stepparent adoptions only require the termination of one parent's rights and leave the rights of the adopting parent's spouse intact.
Generally speaking, if the ex-spouse agrees to the adoption, he or she may consent by joining in the Petition for Adoption as a "co-petitioner". Where the ex-spouse joins the Petition, their part in the adoption is done. They do not need to attend the finalization hearing. However, if the ex-spouse contests the adoption, there must be a trial, and the Petitioner has the burden of proof to show that at least one ground for termination of parental rights exists. If the Petitioner cannot show a ground for termination, then the legal or biological parent retains his or her rights.
So, securing termination by agreement is much easier than holding a contested hearing in many cases.
Finalizing the Adoption - Step Child to Legal Child
Once parental rights have successfully been terminated, the adopting parents can schedule a finalization hearing, at which the court will sign off on the adoption and make it official. The finalization hearing is an important day, and something to celebrate. Once the court issues its order, the stepparent and child are legally related, meaning the law treats the child as if he or she was born to the adopting stepparent!
Reasons why a biological father or mother may not agree to a stepparent adoption.
Personal Reasons
As sad as it may sound, the unfortunate reality is that many refusals to consent to a stepparent adoption stem from personal feelings of resentment between ex-spouses.
Some biological parents may feel like holding a stepparent adoption "hostage" gives them leverage over an ex-spouse who has moved on. Some may just want to make life difficult for their ex-spouses, and do not consider what is in the best interest of the child.
Some may just not want to give consent to what they see as the "final nail of in the coffin" for their past relationship, especially if they see their child as a possible road to reunite.
Humans are complex, emotionally driven, and not always rational, but it can still be jarring for an ex-spouse to withhold consent for no other reason than spite. The important thing is to push forward with and adoption, even without the biological parent's consent, when it is in the child's best interest.
Fear of Losing Contact with the Child
Other parents fear that if they consent to an adoption, they will lose visitation or all contact with their child, whom they love. No matter what assurances they receive, they will never believe that they'll have access to their child after the adoption.
In these cases, it may be harder to terminate parental rights, because parents who love and care for their children rarely display the behavior that can serve as grounds for termination (e.g., abandonment, failure to pay child support, exposing the child to danger, etc.) Even so, if adoption is in the child's best interest, it may be worth fighting for.
Feelings of Guilt
Finally, some parents may simply feel guilty for failing a child, even if they've never provided any support or cultivated a relationship with the child, and this guilt can be overwhelming and may lead to feelings of shame and regret. It's important for parents in this situation to acknowledge their feelings and seek support from a trusted friend, therapist, or support group. Sometimes it just takes an objective professional to show a biological parent that they need to let go, even if they feel guilty.
Steps to Take When Facing a Resistant Ex-Spouse.
If your ex won't consent to the adoption, there are some steps you can take to try to work out an agreed adoption prior to filing for termination. Below, we've listed three of the strategies you should use when your ex initially refuses to consent.
Have a Serious Discussion with your Ex
The first strategy is one that should be a matter of course in any adoption. Unfortunately, couples who have had a rough history may not be able to communicate effectively, but even if that is the case between you and your ex, it helps to remind yourself (and your ex) that this is about your child, not about your past relationship.
Make sure to discuss the important emotional benefits that the adoption will provide your child. Stress that the adoption will promote normalcy and stability. Also talk about the benefits that your ex will have, including relief from ongoing child support, and a release of parenting responsibilities.
Finally talk about your desire for your new spouse to be the child's mother or father, and how important it is to you.
Of course, your mileage may vary, but it costs nothing but your comfort to have a heart to heart with your ex about the adoption. Keep in mind, that this option may not be good if you are unable to locate your spouse.
Consider Offering a Post Adoption Contact Agreement in Exchange for Consent
In order to adopt a stepchild, it may be necessary to enter into a post adoption contact agreement with your ex-spouse. A post adoption contact agreement (PACA) is an agreement that allows you and your ex to share information about your child after the adoption. These can be as open or as restrictive as you want and range from sharing a photo once a year to weekly visits.
PACAs do provide benefits to the child in many situations, as they allow the child to maintain contact with his or her birth family and develop relationships that they otherwise would not have. If you are comfortable with the contact, a PACA can also be a great bargaining chip to secure the consent of an ex. Just be sure you agree on all the details, including frequency of contact and whether the PACA will be legally enforceable.
Prepare to Terminate Parental Rights without Consent
If you try to work things out with your ex to secure their consent and you know that they won't agree, you will have to terminate their parental rights by filing a Petition to Terminate Parental Rights. The process can be long, emotionally exhausting, and expensive if your ex contests the petition. If you're at this point, it is likely that your ex will contest the petition, so you and your spouse should mentally and emotionally prepare yourselves for trial and get the best representation you can.
Since you will need to prove at least one grounds for termination of parental rights, you will also need to gather any evidence you have that shows actions or behavior on your ex's part that fits any of the grounds.
Stepparent Adoption Without Birth Parent Consent
If your ex refuses to consent to the stepparent adoption, you will need to terminate their parental rights before you can file your adoption petition. According to Tennessee Code Annotated § 36-1-113, there are two main requirements for terminating parental rights:
The court must find by clear and convincing evidence that there are grounds for termination, such as abandonment, abuse, neglect, failure to support, or mental incompetence of the parent.
The court must find that terminating the parent's rights is in the best interest of the child, considering factors such as the child's need for stability, the parent's ability to provide for the child, the quality of the parent-child relationship, and the child's preference.
The petition to terminate parental rights can be filed by the prospective adoptive parents, a licensed child-placing agency, the child's guardian ad litem, or the Department of Children's Services. The petition must state the facts that support the grounds for termination and the best interest of the child, among other requirements that your attorney will help you with.
The parent whose rights are proposed for termination has the right to be notified of the petition and to have a lawyer represent them in court. The parent can contest the petition and present evidence to show why their rights should not be terminated, and the court will hold a hearing to decide whether to grant or deny the petition based on the evidence and testimony presented by both sides.
If the court grants the petition, the defending parent's rights to the child are severed, and they no longer have the right (or responsibility) to raise, visit with, and make decisions for the child.
Terminating parental rights is a serious and permanent decision that affects the rights and obligations of both the parent and the child. It should not be taken lightly or without legal advice.
Seeking Legal Assistance from Otten Law, PLLC for Navigating the Process
While facing resistance from an ex-spouse during a stepparent adoption can be challenging, with the right legal guidance, it is possible to navigate the process successfully and secure a brighter future for your family. If you need help with a stepparent adoption, book a consultation with an expert today, or call us at (865) 564-6321.
