Stepparent adoption is one of the most common types of adoption in California, allowing a stepparent to legally adopt their spouse’s child and establish a permanent parent-child relationship. Below, we’ll explore what stepparent adoption looks like and outline key information that parties must meet to achieve a successful stepparent adoption under California law.
What is Stepparent Adoption?
Under California law, a stepparent desiring to adopt a child of the stepparent’s spouse may file a petition in any county authorized by law. Importantly, California’s definition of stepparent adoption is inclusive, including adoption by a domestic partner as defined under California law. This means that both married couples and registered domestic partners can pursue stepparent adoption.
In San Diego County, stepparent adoption petitions can be filed with the superior court. Any person desiring to adopt a child may petition the superior court of the county in which the petitioner resides.
- Parental Consent – The Jurisdictional Prerequisite
The most critical requirement for stepparent adoption is obtaining proper parental consent. A legal parent’s valid consent is a jurisdictional prerequisite to an adoption, regardless of the child’s interests. This means that, absent proper consent, the court lacks authority to grant the adoption. In a stepparent adoption, the consent of either or both birth parents must be signed in the presence of specific authorized individuals, including a notary public, court clerk, probation officer, qualified court investigator, authorized representative of a licensed adoption agency, or county welfare department staff member of any county in California. The consent must be filed immediately with the clerk of the court where the adoption request is filed. If the adoption request has not been filed when the consent is signed, the consent must be filed simultaneously with the adoption request.
- Validity of Consent
It’s important to note that where a natural parent’s consent to adoption is obtained through fraud, duress, mistake, or similar circumstances, the consent is not voluntary and the jurisdictional prerequisite to a valid adoption is lacking. Additionally, once given, consent of the natural parents may not be withdrawn except with court approval.
- Minor Parents
A birth parent who is a minor has the right to sign a consent for the adoption of the birth parent’s child, and the consent is not subject to revocation by reason of the minority.
- Exceptions to Consent Requirements
California law recognizes several situations where birth parent consent is not necessary. The consent of a birth parent is not required where the birth parent has been judicially deprived of custody and control of the child by court order, has voluntarily surrendered parental rights in another jurisdiction, has deserted the child without provision for identification, or has relinquished the child for adoption through proper legal channels.
- Investigation and Reporting Requirements
A crucial step in the stepparent adoption process involves a mandatory investigation. The probation officer in the county where the adoption action is pending must conduct an investigation into each case of adoption by a stepparent in which one natural parent retains custody and control of the child. The court may make no order for adoption until the probation officer has filed their report and recommendation and the court has considered it. Upon filing the adoption request, the clerk must immediately notify the probation officer or, at the option of the board of supervisors, the county welfare department of that county.
- Best Interests of the Child Standard
The court must determine that adoption is in the best interests of the child. In making this determination, the court must consider the health, safety, and welfare of the child, among other relevant factors, similar to what the Court must consider in Family Law Cases – the Best Interests of the child or children. Importantly, the court cannot consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.
Best Interests is a complex standard that often requires analysis of many factors by the Court. The following factors are just some of what the Court considers when determining what parental/custodial arrangement is in the child’s best interests:
- Parental Fitness
- Who has been the child’s primary caretaker
- Parents’ histories of crime, violence, or substance abuse
- The Parent-Child Relationship
- The Child’s age
- Who can best give stability in the child’s life
- The child’s physical and mental health needs
- Suspected Child Abuse, Neglect, or Abandonment
- Notice Requirements for Presumed Parents
If a mother relinquishes or consents to the adoption of a child who has a presumed parent, that presumed parent must be given notice of the adoption proceeding and have certain rights, unless that parent’s relationship to the child has been previously terminated or the presumed parent has voluntarily relinquished or consented to the adoption.
- Biological Father Considerations
California law also addresses situations involving biological fathers. If, after court inquiry, a biological father is identified, notice of the proceedings must be given in accordance with specific statutory requirements. If an alleged biological father fails to appear or fails to claim parental rights, those parental rights with reference to the child will be terminated.
Additionally, a presumed father may waive the right to notice of any adoption proceeding by executing a specific form before authorized representatives. This waiver must be voluntary and informed without undue influence.
- Abandonment Determinations
In some cases, the court may need to determine whether a parent has abandoned the child. The failure to provide identification, the failure to provide support, or the failure to communicate is presumptive evidence of the intent to abandon. If parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned.
A stepparent adoption typically comes into play when a stepparent seeks to adopt their spouse’s child, often to provide the child with greater stability and security in the family unit. Under California law, the consent of both biological parents is generally required for adoption to proceed. However, there are circumstances under which the consent of one biological parent may not be necessary, such as when the noncustodial parent has abandoned the child or failed to fulfill their parental responsibilities.
A stepparent adoption may proceed without the consent of the noncustodial biological parent if that parent has willfully failed to communicate with and support the child for a period of one year, despite having the ability to do so. In such cases, the custodial parent who has sole custody may consent to the adoption. However, the non-custodial parent must first be served with a citation to appear in court, as required by law. The court will then determine whether the non-custodial parent’s failure to communicate and support was willful and without lawful excuse. Efforts to communicate or support the child may be disregarded by the court. A child is considered abandoned when a parent has left the child in the care and custody of the other parent (or another person) for a period of one year without providing support or communication, and with the intent of abandoning the child.
The court evaluates three main elements to determine abandonment:
- The child must have been left with another person: This includes situations where the child is left in the care of the other parent or a guardian.
- Failure to provide support or communicate for the statutory period: A parent’s failure to provide financial support or maintain communication with the child for one year is presumptive evidence of abandonment. Token efforts to communicate or support the child may not prevent a finding of abandonment
- Intent to abandon: The court must find clear and convincing evidence that the parent intended to abandon the child. Intent can be inferred from the parents’ actions, such as prolonged inaction, failure to seek custody, or refusal to engage in the child’s life despite opportunities to do so.
Conclusion
Stepparent adoption involves several critical legal requirements that must be carefully followed to ensure a successful outcome. The key elements include obtaining proper parental consent, completing the mandatory investigation process, demonstrating that the adoption serves the child’s best interests, and ensuring all procedural requirements are met. Given the jurisdictional nature of many of these requirements, it is essential to work with experienced family law counsel to navigate the process successfully and avoid potential pitfalls that could invalidate the adoption.