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California: Step-Parent Adoptions
(provided by Pauline H. Tesler, Esq.)


I. What Is a Step-Parent Adoption?

A step-parent over the age of eighteen who is presently married to the consenting natural or adoptive parent of a child can under California law become the legal adoptive parent of the child provided one of several circumstances exists. If the facts required by law exist, the step-parent can petition to adopt the child. The adoption by a step-parent, like any other adoption, results in severing the absent biological parent's legal connection to the child, ending that person's rights (including custodial and visitation rights) and responsibilities (including financial support).

II. What Circumstances Must Exist for a Step-Parent Adoption To Be Available?

There are four possible routes to a successful step-parent adoption.

1.Consent.

This is the easiest and least costly avenue to step-parent adoption. The non-custodial biological parent signs forms prescribed by the State of California consenting to adoption by the step-parent. After that, the procedure is essentially the same as in any independent (i.e., non-agency) adoption, involving an investigation by the Department of Social Services to establish that the adoption is in the child's best interests, a report by that agency, an adoption hearing, and--if the social services report recommends the adoption--an adoption decree.

2.Willful failure to support.

The absent parent's consent is not required if that parent has both failed to support, and failed to communicate with, the child for at least a year, provided there is an order or agreement giving the custodial parent custody of the child. The step-parent has the burden of proving that these facts exist but no independent investigation of these facts is required--the testimony of the natural parent and step-parent will suffice. At that point, the burden is on the absent parent to show good reasons for the failure to support and communicate. If he or she does not or cannot provide a persuasive explanation, the requirement of consent will be dispensed with by the court, and the adoption will proceed as in an independent adoption. All this can be accomplished in one legal proceeding, with only one court hearing. Notice must be given to the absent parent.

3.Abandonment.

If the facts show either failure to support or failure to communicate with the child for at least a year, but not both, it is still possible for a court do dispense with the requirement of the absent parent's consent to the adoption because of abandonment, but the procedure is a little more complicated. In this instance, the law requires a Probation Department investigation and report concerning the absent parent's neglect of parental responsibilities. The court considers both the testimony of the parties to the adoption, and the findings of the probation investigation, in deciding whether the absent parent has abandoned the child.

This procedure requires two separate legal petitions, one to terminate parental rights and a second to adopt the child. Two separate court orders are required. Also, notice of the proposed adoption and termination of rights must be given not only to the absent parent, but to certain other relatives of that parent as well. Once the court decides that the absent parent abandoned the child, the matter proceeds as in an independent adoption.

4.Termination of rights of an alleged father.

If the parents of the child were never married and there is no one whom the law presumes to be the natural father, then it may be possible to obtain a court order terminating the "alleged" natural father's rights, without as many legal and procedural requirements as in the case of a formerly-married natural father or a legally presumed natural father. Again, once the parental rights are terminated by court order, the matter proceeds as in an independent adoption.

III. Is It Expensive and Difficult To Do?

If the absent parent decides to contest the termination of rights and the adoption, the legal proceedings can become somewhat costly, depending on what the legal issues are and how complicated it may be to prove the necessary facts.

If the Department of Social Services investigates and then for some reason recommends against the adoption (a rare occurrence in a step-parent adoption), the Court will normally follow the recommendation. It is possible, however, to challenge the negative recommendation and attempt to persuade the Court to approve the adoption; it is also possible to appeal a negative ruling. These situations are very rare, and quite expensive.

Normally, step-parent adoptions are not extremely costly. It is even possible to do the legal work without a lawyer, although most people prefer to have a lawyer handle the court proceedings for them. Most lawyers charge an hourly rate and can give an approximate estimate of the cost of an uncontested step-parent adoption.

Information provided by:
Pauline H. Tesler, Attorney at Law

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