Author’s Note from Attorney Howard Iken: In the State of Florida, a stepparent can adopt their stepchild as long as certain legal procedures are followed. The stepparent must file a petition with the circuit court, and certain supporting documents must also be filed. The court must find that the mother and father have either provided consent or that their consent is not necessary. If a parent does not consent to the adoption, there are a few different ways to deal with the non-consenting parent’s rights. Providing notice of the petition is also required. Once the court enters an order approving the adoption, the parent who is not married to the stepparent will have his or her parental rights terminated. A stepparent adoption can have legal consequences later on as well, such as child support obligations.
It is quite common for divorced ex-spouses to remarry following a divorce. In most cases, such a remarriage does not present any real problems. But problems can arise when one spouse remarries and his or her new spouse wishes to adopt his or her stepchild.
Suppose Jose and Annie have been married for several years and have one child in common, a 4-month-old daughter named Marie. Jose and Annie began to drift apart emotionally shortly after Marie’s birth and continued to do so until they both recently decided they wanted to divorce. A parenting plan was created that designated Annie the majority residential parent and gave Jose regular parenting time. The issues of child support, spousal support, and property division were all amicably resolved. The divorce was finalized and both Jose and Annie moved on with their lives.
Several years later, Annie met and married Marco. The two of them lived together for several months prior to getting married. Marco and Marie get along well in the years since Annie and Marco wed. Unfortunately, Marie’s relationship with her natural father Jose has deteriorated since Jose stopped showing up for his parenting time with Marie two years ago. Annie and Marco have recently begun talking about Marco adopting Marie and the benefits it would provide for their family in general and Marie in particular. But Annie and Marco are confused and have questions: Can Marco adopt his stepdaughter, Marie? How long does the process take? Where do they start the process of adoption? Do they need an attorney to complete the process?
Stepparent Adoption in Florida
In the State of Florida, the law allows stepparents to adopt their stepchildren so long as certain procedural steps are followed. In other words, there generally would be no legal prohibition from someone like Marco adopting his or her stepchild. The steps necessary to accomplish this are set out in the Florida statutes. While a couple such as Marco and Annie are not legally obligated to have an attorney help them through the process, because the steps to completing a stepparent adoption require the court to make specific findings, they may find the assistance of an experienced adoption or family lawyer helpful.
Starting the Process: Is The Stepparent Eligible to Adopt?
The process of stepparent adoption – or any adoption, for that matter – begins by evaluating whether the stepparent is legally allowed to adopt in Florida. Florida Statute 63.042 lists who is and who is not eligible to adopt someone in Florida. In the past: while Florida courts have found that homosexual individuals are permitted to adopt another person, homosexual couples were not able stepparent adoption. This was because stepparent adoption requires that the adopting person be the spouse of the child’s mother or father. Now homosexual marriage relationships are permitted and recognized under Florida law. Now: a homosexual stepparent can be the “spouse” of the child’s mother or father. Because of this recent change in Florida law a same-sex spouse can initiate and complete a stepparent adoption.
Most individuals in Florida are eligible to adopt so long as they do not have a physical disability or handicap that prevents them from serving as an effective parents. For example, a stepparent who is bedridden, who requires constant care and supervision, and who is generally unable to understand or react to his or her surroundings may not be able to adopt his or her stepchild.
Filing the Petition: The Court is Informed
Once it has been determined that the stepparent is legally allowed to adopt his or her stepchild, the stepparent will file a petition with the circuit court for the county in which he or she lives. In the petition, the stepparent will be referred to as the “petitioner” as he or she is the one asking the court to permit the adoption. The adoption must be verified or sworn to (i.e., signed by a notary or other similar official) and must include certain information, such as:
- The date and place of birth of the stepchild;
- The name to be given to the stepchild, if different from the stepchild’s current name (i.e., if the child’s last name is going to be changed);
- A description of how long that stepchild has been in the custody of the stepparent;
- The full name, age, and residence of the stepparent along with how long the stepparent has resided there;
- A statement indicating that the stepparent is physically able to care for the needs of the stepchild;
- A statement of any case (including the case number and date the judgment was entered) in which parental rights were terminated as to either of the stepchild’s parents. If there is no such information, the petition should include a statement of (1) the name and address of any person whose consent to the adoption is required; (2) whether each person has or has not consented to the adoption in accordance with the law; and (3) for any person who has not consented, the facts or circumstances that show why such consent is not required; and
- The reasons why the stepparent wishes to adopt the stepchild.
At the time the petition is filed, certain supporting documents must also be filed. These documents include:
- Copies of any judgments terminating parental rights or consents to the adoption;
- Documentation that an interview was held with the stepchild, provided that the stepchild is 12 years of age or older and the court determined such an interview is in the child’s best interest.
This “interview” is designed to ascertain the wishes of the parent; and
- Any reports or recommendations ordered by the court (unlike some other forms of adoption, reports or recommendations from outside agencies are not usually required in stepparent adoptions unless the court specifically finds that these would be needed).
What About the Child’s Parents? Obtaining Consent or Termination
The court must find that the mother and, in most cases, the father have either provided consent or that their consent is not necessary. In stepparent adoptions, it is almost always guaranteed that at least one of the child’s parents (the parent presently married to the stepparent) will provide his or her consent to the stepparent adoption. If the parents of the child consent to the adoption, they will memorialize their consent in writing and before a notary or other similar official. There are standard forms for this; in general, the form will need to: (1) identify the person providing consent and state his or her relationship to the child – that is, whether the person is the child’s father, mother, or legal guardian; (2) indicate that the person, in signing the consent, is giving up his or her parental rights to the child (note this is not necessary for the parent to whom the stepparent is married); and (3) show the person understands the legal consequences of the consent; that is, that he or she understands he or she may not have any continuing visitation rights with the child and may not participate in decisions regarding the child’s upbringing or welfare.
Suppose that in Marco and Annie’s case, Jose is notified of the petition for stepparent adoption (see below) and does not want to consent to the adoption. In this case, all is not lost; however, because a parent is entitled to certain rights such as the right to visit with and parent their child, the non-consenting parent’s rights must somehow be dealt with. There are a few different ways this can happen:
- If the parent has either deserted a child without means of identifying the child or its parents (i.e., the parent dropped an infant on a stranger’s doorstep and disappeared) or has otherwise abandoned the child, it is not necessary for the stepparent to obtain his or her consent;
- Consent is not necessary if the parent’s rights were terminated in another proceeding. This can happen if: (1) the parent has executed a surrender document witnessed by two witnesses; (2) the parent has abandoned the child; (3) the parent has engaged in behavior that endangers the life, safety, well-being or health of the child; (4) the parent is incarcerated for a certain period of time; (5) a child has been adjudicated dependent and the parent has not complied with the case plan filed with the court; or (6) the parent has engaged in “egregious conduct” that threatened the health and well-being of the child or a sibling of the child. Rights may be terminated if the parent has been served with notice and the petition but does not respond to the petition or show up at any hearing. There are other circumstances that can result in the termination of a parent’s rights; an attorney can explain the range of circumstances under which a parent’s rights can be terminated.
- Finally, if the parent is declared to be incompetent, and there is little chance he or she will become competent, then consent is not necessary (such as when the parent is in a coma, for example, and there is little likelihood the parent will emerge from the coma).
Finally, the father of the child who is being adopted by a stepparent only needs to consent to the adoption if:
- The child was born while he was married to the child’s mother (such as with Jose and Annie);
- He had previously adopted the child;
- A court has determined he is the father of the child;
- He has filed an affidavit of paternity with the courts; or
- He was not married to the child but acknowledged he was the child’s biological father in accordance with Florida law.
Obtaining consent or finding that consent does not need to be obtained from each of the child’s parents is essential. Without this, the stepparent adoption will not proceed.
Providing Notice of the Petition
Once the petition has been filed along with the supporting documentation, notice is to be given to other interested parties. “Notice” is simply a legal term referring to notification about the date and time the petition for stepparent adoption will be held. The notice would include a copy of the petition for stepparent adoption. The Florida statutes contain rules regarding how notice must be given and what to do in unusual cases such as when a parent may be difficult to locate.
If a petition for stepparent adoption is filed and both the child’s mother and father have consented to the adoption, there need not be a delay between the filing of the petition and the hearing – in fact, the hearing can be held right away and the adoption finalized. For instance, suppose that Jose did not object to Marco adopting Marie and filed an appropriate consent form. Annie also filed a consent form. Once Marco files his petition, then, the court can hear the petition right away and approve the judgment.
Once the court enters an order approving the adoption, the parent who is not married to the stepparent will have his or her parental rights terminated (if they have not been already). While this would terminate any child support orders, it would also mean that the parent is no longer legally entitled to visit the child or make childrearing decisions.
Be aware that a stepparent adoption can have legal consequences later on as well. For instance, if the stepparent and his or her spouse divorce, the stepparent can be held responsible for child support. This is true even if the child is not his or her biological child. It is important to discuss these and other legal consequences of a stepparent adoption with a knowledgeable attorney.
Although stepparent adoption may be a simpler form of adoption when compared to other methods, this does not necessarily mean it is easy. Certain formalities and procedures must still be followed in order for the adoption to proceed. This includes making sure the stepparent adoption petition contains the necessary information, that both the mother and biological father of the child consent to the adoption, or, if one of the parents will not consent, that the court has enough information to find consent is not required. Depending on the particular circumstances, a stepparent adoption can be accomplished in a matter of a few months.
If the procedural steps are not followed, however, the stepparent adoption may be denied. Although you do not need an attorney to assist you (in fact, a “non-lawyer” is permitted to help you), the assistance of our legal team can prove very beneficial, especially if challenges arise during the process. When one of the child’s natural parents is objecting to the adoption, if you are unsure if an exception obviates the need for consent, or if you do not know when or how to provide notification, our attorneys can help provide guidance. Also, if you are in a homosexual relationship and want to adopt your partner’s child, our attorneys can direct you as to the adoption options available to you.