Unmarried Couples and Adoption
Here's an overview of legal issues unmarried couples face when adopting a child.
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In addition to, or instead of, having your own biological child, you and your partner may want to adopt a child. Adoption is a court procedure by which an adult legally becomes the parent of someone who is not his or her biological child. Adoption creates a parent-child relationship recognized for all purposes—including child support obligations, inheritance rights, and custody. The birthparents’ legal relationship to the child is terminated, unless the adoption is a stepparent or a so-called “second-parent” adoption, in which case only one parent without custody loses parental rights.
Overview of Adoptions
If an unmarried couple jointly adopts a child, or if one partner legally adopts the biological child of the other, both parents are legal parents. This means both have equal legal responsibilities to raise and support the child. If the couple separates, each has the right to petition a court for custody of (or visitation with) the child, and each has an obligation to provide child support.
Adoption is primarily governed by state law. As a general rule, any adult who is found to be a “fit parent” may adopt a child as long as the child is free for adoption, meaning that appropriate consents have been given. It is legal for single people to adopt children in many states. Unmarried couples may adopt jointly, and unmarried people may adopt through a procedure known as a single-parent adoption.
Adoption agencies are allowed to create their own rules about who can adopt and under what circumstances, as long as they don’t run afoul of state law. While there are often no specific legal prohibitions against unmarried couples adopting children, you may find that adoption agencies are biased against unmarried couples, or make it more difficult for unmarried couples to adopt. You should be prepared to explain why you haven’t married and to make a good case for your fitness as a parent. In general, you should expect to do extra work to prove that your home is a stable and healthy environment for raising children. A local social service agency will conduct a home study and interview both partners and then report to the court, which must approve adoptions. You may have a longer wait for a child, or you may have to broaden your ideas about the age and type of child you want to adopt.
In a stepparent adoption, a parent marries someone other than his or her child’s other parent, and the new spouse adopts the child. When the adopting couple is married, the adoption is usually readily approved. These adoptions usually don’t cost much and may not require a home study by a social worker. The equivalent process for unmarried couples is called “second-parent adoption.” When the adopting couple is unmarried, the cost may be higher and a social worker home study is almost always required. In addition, a number of states still frown upon second-parent adoptions when the couple is unmarried. If you are considering one of these adoptions, you’d be wise to consult with a local family law attorney to get an evaluation of your rights. Keep in mind that if you don’t adopt your partner’s biological child, you risk losing access to the child if you and your partner separate.
A child cannot be adopted without the consent of both parents, unless one parent has failed to establish a parent-child relationship with the child or has abandoned the child.
If the noncustodial parent is the father, the social service agency will determine whether his consent is needed before a stepparent or second-parent adoption can take place. A father who signs a paternity statement, provides support (if he can), and maintains a relationship with his child, can probably prevent the child from being adopted by someone else. In addition—especially if the child is a baby and the father has had little opportunity to support or visit the child—or has been prevented from doing so by the mother—he may be able to prevent the stepparent or second-parent adoption and petition the court to obtain visitation.
If the noncustodial parent is the mother, the social service agency will have to obtain her consent or recommend that her parental rights be terminated. Unmarried mothers without custody must pay support if they can and visit the child—or face losing the child to a stepparent or second-parent adoption.
Remember, once a person does formally adopt a child, that person has all the legal rights and responsibilities of a biological parent, whether the adopting parent is a partner who legally adopts the biological child of an unmarried partner or part of an unmarried couple that jointly adopts a child.
More Information on Adoptions
For an overview of legal issues involving adoptions, including different options, such as agency and private adoptions, see the Adoption topic on Nolo’s website.
Legal Help with Adoptions
Get a good family law attorney if you want to adopt. Social service and government agencies often discriminate against unmarried couples, and adoption proceedings can often be complex (particularly if it’s a private adoption), so you’ll need to get some legal advice before you and your partner try to adopt. For a list of local family law attorneys, see Nolo's Lawyer Directory.