Stepparent Adoption Procedure

Posted on January 2nd, 2015

Procedure for California Stepparent Adoptions – a Practical Guide

Stepparent adoption proceedings are relatively common in San Diego County, California, although they can be extremely difficult to complete depending on the circumstances.  A stepparent adoption always begins with the filing of a petition for the adoption.  The petitioner is the stepparent that hopes to adopt the child, and the case is filed in the county where the petitioner lives (usually this is the same county as the child).  See Family Code 9000(a).  The petition should be carefully drafted so that no mistakes are made, which could cause the petition to be denied or delay the process unnecessarily.  Along with the petition there is one critical form that is necessary, which is the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which requires the petitioner to identify the child at issue in the case and their identifying information such as date of birth, along with any cases for which the child is already a part of the proceedings such as a divorce, paternity, domestic violence or juvenile matter.  Most often, it is prudent and helpful for the petitioner’s spouse (i.e. the parent of the child) to file a Consent to Stepparent Adoption so that it is clear to the court that the stepparent and one of the child’s parents agree to the adoption.

Petitions for stepparent adoptions are filed in the Juvenile Court in San Diego County, regardless if there is an open family law case (such as a divorce, paternity, etc.)  Many times, there are good reasons for the adoption to occur when one parent is essentially not in the child’s life or is contributing nothing to the care and support of the child, such as where the stepparent has excellent healthcare coverage that could be made available to the child after the adoption is completed.

Stepparent adoption cases come in two types: Either they are uncontested or they are contested.  This guide discusses both types of cases.

Uncontested Stepparent Adoptions

After the initial petition is filed by the stepparent seeking to adopt his or her spouse’s child, the documents must be served on the biological parent.  This can be accomplished in a variety of ways, and it is important that it is done correctly.  Once served, the other parent can sign a form in the presence of the court clerk in their county acknowledging their consent that their parental rights are to be terminated, or in the presence of a notary, probation officer, etc.  They can also appear in court on the hearing date to acknowledge their consent, or they can inform the social worker conducting the investigation that they consent.  The forms are filed and at the hearing date, the court will terminate the parent’s rights and set a further hearing on the adoption (by this time, the social worker will have completed their report and recommended that the stepparent be allowed to adopt).

Contested Stepparent Adoptions

Stepparent adoption cases get extremely difficult when the biological parent that is the “responding party” to the case does not consent to their rights being terminated.  There a significant Constitutional protections given to parents, so Courts are not quick to sever that relationship.  Unless there is a serious problem with the parent or with the parent-child relationship, the Court will never consider terminating the biological parent’s rights.

In contested stepparent adoption cases, the respondent parent has the right to a trial and the right to have an attorney appointed to represent their interests.  The Court will routinely appoint an attorney to represent the respondent parent.  In these cases, the court will usually set a pretrial conference date and parties may conduct their discovery.  If there is not a “prima facie” case to terminate the parent’s rights (i.e. if none of the statutory grounds allowing the court to terminate parental rights is set forth in the initial petition/complaint), the court will dismiss the petition and that will be the end of it.

Once discovery is completed, the court will set trial and hear evidence on the issue of whether the stepparent’s rights should be terminated.  The social worker’s report will have been submitted to the judge by that time, and the social worker will testify.  Any other relevant witnesses will need to testify to support either side’s position.

After the trial, if the court decides that there is not sufficient evidence to warrant terminating the biological parent’s rights that will be the end of the case.  If the court does sever the biological parent’s rights, there is a waiting period while the appeal clock ticks away and a further hearing will be set thereafter on the adoption (which will be approved because the report will already have recommended that to happen).  The child is brought to court for a wonderful adoption ceremony.

Is there an Investigation Process for Stepparent Adoptions?

Yes.  The Court appoints a social worker to complete an investigation as to whether the Court should allow the adoption.  They will interview both biological parents, the stepparent and child.  They will conduct background checks and usually do a site/home visit.  The social worker will generate a written report for the Court.  Notably, the Code states, “Except as provided in Section 9000.5, the probation officer, qualified court investigator, licensed clinical social worker, licensed marriage family therapist, private licensed adoption agency, or, at the option of the board of supervisors, the county welfare department in the county in which the adoption proceeding is pending shall make an investigation of each case of stepparent adoption.”  (Fam. Code 9001(a))

Can a Biological Parent’s Rights be Terminated in Family Court?

Under limited circumstances, a family court judge that has jurisdiction over a child within a divorce or paternity matter has the authority to terminate the biological parent’s rights with respect to a child.  This would be a very unique situation, but allowed if the biological parent poses a substantial risk to the child due to their habitual drug or alcohol use, or if the biological parent has failed to communicate or financially support the child for more than one year.  These are the same grounds that the Juvenile Court will weigh when determining whether to terminate a parent’s rights in a stepparent adoption case.  Our law firm has accomplished terminations of parental rights both in Family Court and in Juvenile Court.

Can a Domestic Partner or Same-Sex Marital Partner Seek to Adopt a Child?

Yes.  Family Code 9000.5(a) states, “Stepparent adoptions where one of the spouses or partners gave birth to the child during the marriage or domestic partnership, including a registered domestic partnership or civil union from another jurisdiction, shall follow the procedure provided by this section.”

For more information about stepparent adoptions, contact our stepparent adoption experts today at (619) 284-4113 or visit our Contact page.