From time to time individuals and couples will come to us and ask about the possibilities of adopting a child or having a spouse adopt the other spouse’s child or children. The process of adoption and a step-parent adoption are similar and we will discuss those processes below.
Know Your Rights
The process of completing an adoption is fairly straight forward as the process is laid out in near step-by-step detail in Chapter 63, Florida Statutes. However, it is wise to consult with an experienced Florida family law attorney to assist in completing the process timely and correctly. Otherwise, one can easily get lost in the system and spend months, or even years, attempting to obtain a legal step-parent adoption.
To begin an adoption, first, the adopting individual must have the ability to act as the child’s parent. So long as an individual does not have a severe mental and/or physical handicap, it is likely they would be eligible to act as a child’s parent.
The adopting parent then needs to proceed to ask the Court’s permission to adopt the child(ren); this is done by filing a Petition for Adoption.
Your Attorney’s Obligation To You
Your attorney’s obligation is to be your staunchest representative and an officer of the Court. We will provide you with the most practical and straightforward advice available in assessing each client’s situations and goals.
Attorney Client Privilege
In Florida, the attorney-client privilege is codified in Section 90.502, Florida Statutes. This law states that, generally, communications between a client and their attorney are confidential. In other words, without a legal waiver or other specific exceptions, you and/or your attorney cannot be compelled to disclose communications made in performing our services.
Relationship Based On Trust
From the initial consult through the final hearing, it is of the utmost importance for attorneys and clients to be truthful with one another and for there to be trust between them. The pair are a team and trust is essential. We believe in being transparent with our clients and we cannot afford to be surprised at any time in a case because a client has failed to be transparent with us. If the idea should ever cross your mind and you question, Should I tell my attorney this? The answer should always be, Yes – we are available to then tell you if “this” may be an issue.
Your Attorney’s Role
An attorney may have several roles throughout a case, especially in family law. We may be your representative, your advocate, your advisor, an/or your counselor.
A Petition for adoption shall be signed and verified by the petitioner (i.e. the adopting parent) and filed with the clerk of court and shall include the following:
The date and place of the person to be adopted, if known;
The name to be given to the person to be adopted;
The date the petitioner acquired custody of the minor and the name of the adoption entity placing the minor, if any;
The full name, age, and place and duration of residence of the petitioner;
The marital status of the petitioner, including the date and place of marriage, if married, and divorces, if applicable to the adoption by a stepparent;
A statement that the petitioner is able to provide for the material needs of the child;
A description and estimate of the value of any property of the person to be adopted;
The case style and date of entry of the judgment terminating parental rights, or, if the adoptee is an adult or a minor relative or a stepchild of the petitioner, the address, if know, of any person whose consent to the adoption is required and, if such person has not consented, the facts or circumstances that excuse the lack of consent to justify a termination or parental rights; and,
The reasons why the petitioner desires to adopt the person.
The bolded requirement involving parental rights is where most questions arise. Note – the consent of the child’s parents or the termination of the child’s legal parents’ parental rights is required in order for an adoption to be effective. Terminating a parent’s or both parents’ legal rights is one of the most extreme remedies and highest bars of proof in the Family law arena. We will further address terminating parental rights in our discussion on Chapter 39 below.
Along with filing the Petition for Adoption, a certified copy of the judgment terminating parental rights under chapter 39 or chapter 63, or, if the adoptee is an adult or a minor relative or stepchild of the petitioner, the required consent must be filed.
Along with filing the Petition for Adoption, a preliminary home study prepared by the department of children and families, a licensed child-placing agency, or another professional pursuant to section 63.092, Florida Statutes, as to the suitability of the home in which the child has been placed, must be filed. (This requirement does not apply to a step parent adoption.)
Along with filing the Petition for Adoption, one must also file any declaratory statement issued by the Court pursuant to section 63.102(5)(e), Florida Statutes, as to any adoption contract.
Along with filing the Petition for Adoption, one must file documentation that an interview has been held with the child, if the child is older than age twelve (12), unless the Court has determined that the child’s consent will not be required pursuant to section 63.062(1)(c), Florida Statutes.
Unless ordered by the Court, no report or recommendation is required when the placement is a stepparent adoption or an adult adoption or when the minor is a relative of one of the adoptive parents.
Upon the filing of the Petition for Adoption and the accompanying necessary paperwork, a hearing will be held on the Petition. A hearing may not be held sooner than thirty (30) days after the date of a judgment for the termination of parental rights. A hearing may not be held sooner than ninety (90) days after the date that the minor was placed with the adoptive parent(s). If the adoptee is an adult, a hearing may be held immediately after the filing of the Petition. If the petitioner is a step-parent or relative of the adoptee, the hearing may be held immediately after the filing of the Petition IF all persons whose consent is required have executed a valid consent and the consent has been filed with the Court.
A final home investigation must be conducted before the adoption becomes final. The investigation may be conducted by a licensed child-placing agency or a professional in the same manner as provided in section 63.092 to ascertain whether the adoptive home is a suitable home for the minor and whether the proposed adoption is in the best interest of the minor. Unless directed by the court, an investigation and recommendation are not required if the petitioner is a stepparent or if the minor is related to one of the adoptive parents within the third degree of consanguinity. The department is required to perform the home investigation only if there is no licensed child-placing agency or professional pursuant to section 63.092 in the county in which the prospective adoptive parent resides.
Once the final home study is conducted, affidavits of expenses are completed (only applicable in Chapter 63 actions and not applicable to step-parent or relative adoptions), and the hearing on the Petition for Adoption is held, the Court will enter a Judgment for Adoption and the matter will be concluded for all intent and purposes. Of course, there are deadlines which interested parties may appeal, but, generally, once a Judgment for Adoption has gone uncontested for one (1) years’ time since its date of entry, it cannot be vacated.
The effect of a Judgment for Adoption is as follows:
To relieve the birth parents (except a birth parent who is a petitioner or who is married to a petitioner) of all parental rights and responsibilities.
It terminates all legal relationships between the adopted person and the adopted person’s relatives, including the birth parents, so that the adopted person is thereafter a stranger to his or her former relatives for all purposes, except for the rights of inheritance as provided in the Florida Probate Code. (See a Probate attorney to discuss).
Except for the rights of inheritance (See Probate attorney) an adoption creates the relationship between the adopted person and the petition and all relatives of the petition that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock.