Adoption by Step-parents
When a child is adopted, their ties to their prior parents are severed with one exception. Step-parent adoptions only sever the relationship with the parent the Step-parent is not married to at the time of the adoption.
The requirements for a step-parent adoption are streamlined compared to other types of adoptions.
The Report to the Court usually required by NC § 48-2-501is not required if:
The minor lived with the step-parent for two or more consecutive years immediately prior to the filing of the petition for adoption. In this case, the court may order a report but is not required to do so unless:
- The minor’s consent is to be waived
- The minor has revoked a consent
- The minor’s parents are dead
A step-parent may petition to adopt a minor step-child of his or her spouse if:
- The step-parent’s spouse has legal and physical custody of the child who has resided primarily with the spouse and the step-parent during the six months prior to the filing of the petition for adoption.
- The step-parent’s spouse is deceased or incompetent and had legal and physical custody of the child who has resided primarily with the step-parent during the six months prior to the filing of the petition for adoption.
- The Court makes an exception to the above requirements for a cause the Court finds acceptable.
Consent for a step-parent adoption is required by other parties, depending on the circumstances:
- Unless the other parent is not required to receive notice under NC § 48-3-603, the minor child’s other parent must consent to the adoption of the child.
- If the adoptee is age twelve or older, the child must consent to the adoption.
- Any guardian of the adoptee must consent.
- If the parent is incompetent, additional information will be required.
The agreement must state the following:
That the parent executing the consent has legal and physical custody of the child and is voluntarily consenting to the adoption of the child by the step-parent;
The adoption does not terminate the legal relationship between the step-parents’ spouse and the child.
The adoption terminates the legal relationship between the parent of the minor to whom the step-parent is not married. All the rights the child had to inherit from the other parent are terminated and it will terminate any court orders regarding custody, visitation, and communication with the adoptee. It does not, however, eliminate responsibility for back child support payments unless the Court leally released the parent from back child support.
If the minor child has a guardian, the guardian’s release must disclose that the guardian is voluntarily consenting to the transfer of any right the guardian has to legal or physical custody of the adoptee to the adoptive step-parent.
Unlike adoptions involving new (adoptive parents) who have no biological tie to the minor child, in step-parent adoptions, biological grandparents who have court ordered visitation rights retain their rights when a step-parent adoption occurs, even in cases when their child is the parent who is giving up his or her rights to the minor child.
Biological grandparents may also institute a Court action seeking visitation rights with a child adopted by a step-parent or a relative of the child where a substantial relationship exists between the grandparent and the child. The Court may award visitation rights if it determines visitation is in the best interest of the child.
Step-parent Adoption of Adults
Step-parent adoptions of their adult step-children are not uncommon. The step-parents may wish to formalize a parent-child relationship that developed during the adoptee adult’s childhood, or it may be done to formalize a familial relationship with a step-parent who came into their lives at a later date.
Consent is only required by:
- The adult who is being adopted, and
- The adult who is adopting the adult and, if the adult who is doing the adopting is married, his or her spouse.
- If the adult who is adopting the adult is married, the person’s spouse must state that the spouse “Believes the adoption will be in the best interest of the adult being adopted and the prospective adoptive parent.”
Adoption by a step-parent creates inheritance rights, particularly for individuals who do not have a Will and die intestate.
- The spouse of the adoptee is not required to consent.
- A spouse cannot adopt a spouse.
- State incest laws apply once an adult adopts another adult.
Adopting Incompetent Adults
Adoption is sometimes used to provide someone with the authority to make decisions for an incompetent adult. Adult adoption for this purpose should be compared to establishing a Guardianship for the incompetent adult to determine which one provides the better option.
If adoption is the best option, the incompetent adult’s guardian must state in the consent that s/he understands the adoption will terminate the legal relationship of parent and child between the adult being adopted and his or her former parents, including inheritance rights (unless it is a Step-parent adoption in which case the parental relationship between the spouse of the adult who is adopting the adult and the adult being adopted will not be terminated). The adoption will not terminate a guardian’s rights, duties, or powers relative to the incompetent adult. A guardian ad litem will be appointed by the court to investigate whether the adoption is in the best interests of the incompetent adult.
Special consideration should be given to any inheritance the incompetent adult may be giving up by severing the parent-child relationship with the former parents.
Re-adoption after a Step-parent Adoption
If a parent consented to a step-parent adoption and that step-parent has subsequently died or divorced the child’s biological parent, the parent not married to the adopting step-parent who consented to the Step-parent adoption may wish to readopt his or her biological child.
- Although the petitioner’s spouse will not become an adoptive parent, s/he must consent.
- If the adoptee is 12 years or older, the adoptee must consent.
- The adoptee’s other biological parent must consent.
- The step-parent who adopted the child must consent if the adoptee is a minor.
- If the minor has a guardian, the guardian must consent.
When the adoption is complete, a new birth certificate will be issued reflecting the new parent-child relationships.
Consent of Incompetent Parents
When a Court adjudicates an adult with minor children as incompetent, an investigation must be done before the child can be adopted. The possibility that the parent will regain their ability to function is evaluated as well as the relationship between the child and the incompetent adult. Especially when the adult is likely to recover, alternatives to adoption and severing of the parental relationship are considered.
If it is in the best interest of the child for an adoption to occur, the Court will order the guardian ad litem of the incompetent parent to consent on the parent’s behalf to relinquish parental rights to the child.
One factor that should be considered is whether the child stands to inherit from the incompetent parent since adoption would terminate the child’s ability to inherit from the former parent’s estate.
Death of Step-parent while an adoption is in process
Death of a Joint Petitioner
If an otherwise childless spouse is a joint petitioner in a step-parent adoption and dies while the adoption is pending, before proceeding the widow or widower should consult a Family Law attorney. In North Carolina, if the Step-parent who is deceased does not have a Will and his or her parents are living, they would inherit half the estate. When the adoption is finalized, if it was pending at the time of death, the newly adopted child would receive half the estate and the spouse would receive the remainder of the estate. Without a testamentary trust, the newly adopted child would have full access to his or her portion of the estate at age 18.
Step-parent adoptions provide additional security for children—especially when their noncustodial parent is not involved or their parental rights have been terminated.
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