Stepparent adoption is a formal court process that allows a biological parent's spouse to adopt the spouse's child. Stepparent adoption procedures and requirements are dictated by state law. Although every state's laws are different, it's helpful for anyone who's considering a stepparent adoption to become familiar with the basics of the process outlined below.
Many states require the consent of both parents—the custodial spouse and the parent who doesn't have custody of the child—to proceed with a stepparent adoption. Obtaining the noncustodial parent's consent is often the biggest hurdle in stepparent adoptions.
Ideally, the noncustodial parent will agree to the adoption: Some biological parents consent to the adoption because they recognize it's in the child's best interest. Others might agree because it will extinguish their obligation to pay child support once the adoption is final.
However, it's often challenging to get a noncustodial parent to consent to adoption because this means giving up all rights to a child. Generally, a complete termination of parental rights means the parent:
If you have trouble reaching an agreement, or the other parent won't consent, you will need to ask the court to terminate the other parent's rights. The judge will not allow the adoption to proceed unless there's a valid reason to terminate parental rights, like abandonment, unfitness, or a history of child abuse.
If your child's other parent will not consent to the adoption, or if you can't locate the parent, you can ask the court to terminate the parental rights of the other parent. The court's primary concern is what's best for the child. How to demonstrate that stepparent adoption is best for your child depends on the facts of your case. However, because termination of parental rights is absolute, the burden of proof is very high, and the court will only allow the adoption to proceed if it's certain that it's best for the child.
Courts will often terminate the rights of the noncustodial parent in situations where the parent has abandoned the child or is unfit to be a parent.
You might feel hopeless during the adoption process if the other parent is absent and you can't obtain consent. However, the stepparent adoption process can continue if you can prove that the parent hasn't had contact with the child or hasn't exercised parental rights for the child. Every state's abandonment laws vary, but most states require at least one year to pass where the parent has failed to support or communicate with the child. In cases where the parent pays child support, but doesn't see the child or exercise any other parental rights, the termination process might be more complicated.
If the absent parent is male, you can terminate his rights if you can prove to the court that he is not the child's biological parent. Every state has varying laws regarding who is presumed to be the biological parent, so it's critical to understand your state's laws. For example, in many states, if an opposite-sex couple is married when the child is born, the court automatically presumes that the woman's husband is the father, so the child's birth certificate will reflect that the husband is the biological father. If it's later revealed that the presumption is incorrect, the parent will need to officially rebut the presumption using procedures required by state law.
When you can demonstrate that the other parent doesn't meet your state's requirements for presumed parenthood, the court can terminate that parent's rights, and you can move forward with your stepparent adoption. However, if the other parent objects and presents evidence that the presumed parenthood is accurate, a court will likely not terminate the parental relationship. Instead, you'll need to either work with the parent to get their consent, or prove that there's another reason why the parental relationship should be terminated, such as abandonment, unfitness, or any other reason recognized by state law.
If the other parent has a history of child abuse, is addicted to drugs or alcohol, or is incarcerated, the court will conduct a hearing to determine if it's in the child's best interest to allow that parent continue to exercise parental rights. In these types of cases, if the prospective stepparent is stable and committed to providing the child with a better life, the court might terminate the other parent's rights and allow the stepparent adoption to continue.
Often, because proceeding with a stepparent adoption without the other parent's consent can be challenging, adopting parents choose to hire an attorney to help them present their case to the court.
In addition to getting one or both parents' consent to a stepparent adoption, you might need to get the child's consent. Most state laws require consent of older children (starting at age 10 to 14, depending on state law). For example, in Colorado, people 12 years old or older must give written consent to be adopted. (Colo. Rev. Stat. § 19-5-203(2) (2022).)
Married same-sex couples in all states have the same rights to stepparent adoption as opposite-sex married couples. Also, most states that recognize domestic partnerships or civil unions also grant partners in these relationships the same stepparent adoption rights as married couples. For example, in California, a domestic partners are eligible for stepparent adoptions (Cal. Fam. Code § 9000(a)), and in Illinois civil union partners are eligible for stepparent adoptions (750 Ill. Comp. Stat. § 50/2(A)(a) (2022).)
It's common for same-sex couples to have children using sperm or egg donors, and the donors typically sign away parental rights, which eliminates the sometimes monumental task of obtaining consent in a stepparent adoption.
As a first step in the stepparent adoption process, you'll want to contact the clerk of the court in your area to find out what paperwork is needed to file a petition for stepparent adoption. Because stepparent adoptions are the most common form of adoption in the United States, courts often have standard forms to use. Once you've prepared and filed the appropriate forms, the court might set an initial hearing. However, many courts waive the initial hearing in stepparent adoptions.
Next, you might be required to have a home study. Home studies—when a social worker comes to the potential parent's house and evaluates the fitness of the family, among other things—are required in most adoptions. However, many states waive the home study requirement for stepparent adoptions.
The last step will be to attend the final adoption hearing. The judge will likely ask the parents a few brief questions, and might also ask the child being adopted a few questions, if appropriate. The judge will issue an order finalizing the adoption, and you'll receive an adoption certificate. If you've requested the child's name to be changed as part of the adoption, the new name will be reflected on the certificate.
After the adoption is final, the parents can apply for a new birth certificate with the adoptive parent's name listed in the biological parent section.