Adoption During Divorce

When a couple decides to divorce while adopting a child, the decision does not necessarily halt the adoption; however, the impact of divorce depends upon the type of adoption involved. The different types of adoptions, and the dynamics of the adoptive relationship, can affect the impact of a divorce proceeding and the parents’ rights. The types of adoption are:

  • A consensual adoption, when the birth parents voluntarily relinquish their parental rights and agree to surrender the child to the adoptive parents who become the child’s legal parents. This routine is contractual, and the birth parents can require the adoptive parents to be married.
  • A foster care adoption, when the birth parents’ rights have been terminated. Here, the court has the ultimate decision over how the divorce affects the adoption.
  • A stepparent adoption, when the birth parent’s new spouse wishes to adopt the children. The court normally forbids this type of adoption upon the divorce of the stepparent and birth parent.
  • An international adoption, when a child is from a country outside of the United States, and the adoption laws of that nation will control the decision.

Filing for divorce before the adoption is finalized may stop the adoption. In a consensual, contract-driven adoption, the birth parents are free to revoke their promise to surrender their child when learning that the would-be adoptive parents are divorcing. The birth parents can make allegations of fraud if believe the adoptive parents misrepresented themselves as a married, two-parent household when, in fact, they were planning to divorce. In a foster care adoption, the birth parents have no legal rights to contest the adoption on the grounds of the divorce of the potential adoptive parents. However, the judge, in his discretion, can invalidate the foster adoption if he finds that placing the child with the divorcing parents would not be in the child’s best interests.

On the other hand, adoptive parents – that is, those with finalized adoptions – have the same rights and responsibilities as biological parents with regard to custody, visitation and child support. However, when divorce proceedings begin and occurs prior to the finalization of the adoption, the divorce could hurt the progression of the adoption, depending on the individual circumstances.

Once an adoption is finalized, the birth parents and courts no longer have any standing to contest the adoption on the grounds of the adoptive parents’ divorce. The divorce continues and the children are treated as biological children. The court decides custody and visitation matters with the child’s best interests in mind, and many states require divorcing parents to enter into a parenting plan detailing visitation and dispute resolution. Both adoptive parents are able to petition the family court for modifications to custody, support or visitation orders.

The federal government extends Title IV-E Adoption Assistance subsidies for adopted children. When adoptive parents divorce, it receipt of the subsidy becomes an issue and how these benefits affect child support. The North American Council on Adoptable Children stresses that these payments benefit the children, not the parents. Further, the IRS states that adoption assistance is tax exempt and considered public welfare for the children. Despite the payment of any adoption assistance, parents who claim adopted children, as dependents are required to pay child support at the same rate as parents with biological children

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