Can I Adopt My Step-Child? Is Step-Parent Adoption Right for My Family?

Adoption of a stepchild by a step-parent can be a wonderful way to provide stability and a loving family environment for a child. The process can be relatively straightforward if all parties agree to the adoption, and a step-parent adoption in certain situations can provide tremendous benefits for the family as a whole. However, there are situations in which the  step-parent adoption could end up in a custody dispute. If the biological parent does not wish to relinquish their parental bond, the court must step in to resolve the matter.

The adoption of stepchild by a stepparent is governed by O.C.G.A. § 19-8-6. This statute sets forth several criteria that must be met in order for the adoption to proceed.

• First, the biological parent who is losing their parental rights must “voluntarily and in writing” surrender those parental rights to the adoptive spouse “for the purpose of enabling that spouse to adopt the child.” O.C.G.A. § 19-8-6. Note that it is not enough for the parent to surrender their rights in general; it must be done specifically and intentionally to move the process of adoption forward.

• Second, the other parent, who is the spouse of the step-parent seeking adoption, must consent to the adoption. This requirement seems somewhat obvious and, indeed, even the court has been known to overlook the lack of written consent as “immaterial.” (McCurry v. Harding, 270 Ga. App. 416, 606 S.E.2d 639 (2004)).

• The third criteria only comes into play in the event the child has a legal guardian. In that case, the guardian must “voluntarily and in writing” surrender their rights to the child. As in the case of the biological parent, the guardian’s surrender must occur specifically in connection with the process of adoption.

If there is only one parent living at the time of adoption, the first criteria becomes moot and the court will rely on the consent of the surviving parent and/or the surrender of rights by the legal guardian, if one exists. The definition of “parent” is significant here. The Georgia Supreme Court case In re C.N.W., 274 Ga. 765, 560 S.E.2d 1 (2002) affirmed that a biological father who has never acknowledged or “legitimized” the child is not considered a legal parent. In this case, the court will follow the statute guidelines as if one parent is living at the time of adoption.

The consent of the child is not required for children 13 years old or younger. O.C.G.A. § 19-8-6. However, if the child being adopted is 14 years old or older, the court will require written consent from the child and acknowledgment of that consent in court during adoption proceedings.

In certain cases, the court may grant the adoption without the voluntary consent of the biological parent. In those cases, the court will follow the guidelines in O.C.G.A. § 19-8-10, which states that parental rights can be terminated if the biological parent has abandoned the child, cannot be located, is insane or incapacitated, or if the parent has failed to demonstrate proper care of the child.

Termination cases set the bar high for termination, preferring to keep biological parents involved in their child’s lives unless it is detrimental to the child to do so. In re Marks, 300 Ga. App. 239, 684 S.E.2d 364 (2009), set the standard that there must be clear and convincing proof that the biological parent has abandoned the child without justifiable cause and that the burden of proof is on the petitioner to prove that termination is warranted.

For some families, step-parent adoption is best for the step-child and for the family. To seek help with a step-parent adoption, call the adoption and custody lawyers at Buckhead Family Law. We will work with you to ensure that the most appropriate outcome for your family is within reach. To schedule an appointment, call our office today at 404-390-0000.