Stepparent adoption is a formal court process that allows a biological parent’s spouse to adopt the spouse’s child. When the court finalizes a stepparent adoption, the child will receive a new birth certificate with the adoptive parent’s name listed in the biological parent section, and if desired, will also take that parent’s last name.
Stepparent adoption is the most common adoption procedure in the country because the process is more streamlined and less complicated than other forms of adoption. For example, most adoptions require a home study, which can take several months to complete, but some states waive the home study in stepparent adoptions.
Although the stepparent adoption process may be easier in many respects, the most challenging task can be obtaining the other birth parent’s consent. Some biological parents consent to the adoption because it’s in the child’s best interest. Others may agree because it will extinguish their obligation to pay child support once the adoption is final. In an ideal situation, the noncustodial biological parent will agree to the adoption, and you can file a joint request.
However, it's often challenging to get parental consent to adoption because this means giving up all rights to a child. Generally, a complete termination of parental rights means the biological parent:
If you have trouble reaching an agreement, or the other biological parent won't consent, you will need to ask the court to terminate the other bio 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 birth parent will not consent to the adoption, or if you can’t locate the parent, you can ask the court for help. The court’s primary concern is what’s best for the child, and you can demonstrate that stepparent adoption is best for your child is a variety of ways. 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.
You may 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 may be more complicated.
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 let that parent continue to exercise parental rights. In these types of cases, if the biological parent’s spouse is stable and committed to providing the child with a better life, the court may involuntarily terminate the other parent’s rights and allow the stepparent adoption to continue.
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 what the law is in your state. For example, in Michigan, 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 either spouse later discovers that the presumption is incorrect, the parent will need to meet the state’s requirements (within the required period), to rebut the presumption.
If you can show that the other biological 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 biological parent doesn’t consent and demonstrates that the presumed parenthood is accurate, you’ll need to either obtain consent from the other parent or ask the court to terminate parental rights by proving abandonment, unfitness, or any other state-approved standard.
In 2015, the United States Supreme Court (USSC) overturned the ban on same-sex marriage making it legal in all 50 states. Prior to this, couples living in states where same-sex marriage wasn’t legal could not petition the court for stepparent adoption, even if both biological parents consented. Tragically, this meant that if the biological parent died, the child would likely end up living with strangers instead of the other (non-biological) parent.
Presently, however, if you’re legally married to a same-sex partner, you have the same rights to stepparent adoption as opposite-sex couples. But you’ll need to meet the same requirements as other couples. 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.
On the other hand, if one biological parent has a child with an ex-partner or ex-spouse, you’ll need to obtain consent or go through the court process of terminating parental rights before you can finalize your adoption.