The notion of what a family is and what people can come together to create a family is changing before our eyes. What our parents would have thought of as a “traditional” family is likely not what you believe a traditional family to look like. In fact, many of us may not think the term “traditional family” even has any applicability any longer. This is not to say that anyone is right or wrong when it comes to their thoughts on the subject. It’s only to say that families come in all shapes and sizes.
We can all think of a friend of ours or a person in our community who was raised by a person or persons who were not their birth parents. Grandparents, uncles, aunts, friends, and people in the community at large will frequently come to the aid of a family, and more specifically to the aid of a child who needs help being raised. Mothers and fathers can find themselves in difficult positions where they are not able to shoulder the responsibility of caring for a child. In those situations, a child is left in a potentially dangerous spot.
Despite the fact that there are big-hearted people who frequently jump into the fray to take on the awesome responsibility of acting as a parent to a child, a person can only have two parents from a legal perspective. If you seek to become a legal parent to a child, you would need to ask a court to name you as such. The biological parents to a child will remain as the legal parents to that child until and unless someone attempts to adopt the child.
You may find yourself in a position where you have been caring for a child on an on-going basis and are interested in exploring what it would mean to adopt the child. If that is the case then you have come to the right place. Today’s blog post from the Law Office of Bryan Fagan will introduce the topic of adoption in Texas.
What does it take to adopt a child?
Supposing that the child you wish to adopt already has two parents (with intact parental rights), you would need to convince a judge that your adoption of the child is in the child’s best interests. There are a number of different steps that must be undertaken in order to get your adoption case to the point where the judge can make such a decision. Not the least of which is the termination of at least one of the parent’s parental rights.
I will stop at this point to say that adoption cases are burdensome in terms of time and money. It is not advisable to represent yourself in an adoption case. There is a great deal of information you need to be able to manage as well as a whole system of laws and courts that you are unfamiliar with. This blog post and the ones to follow cannot possibly discuss every single topic that is relevant to adoptions in Texas. However, I will do my best to make sure it is as comprehensive as possible.
By all means, however, you should look into hiring an attorney to represent you if you intend to move forward with an adoption case. Experienced family law attorneys, such as those with the Law Office of Bryan Fagan, are the type of lawyers you should be looking to speak to about your case. Our attorneys and staff understand the needs of families like yours and we work tirelessly on behalf of our clients. That is the sort of commitment and advocacy that you will need in order to be successful in your case.
Is adoption the same thing as gaining custody of a child?
Ultimately, how is custody different than adoption. You may know of a grandmother that goes to your church who is the conservator of one of her grandchildren. Does being a conservator mean that she is also the adoptive parent of that child? How is conservatorship different than adopting a child?
For starters, in order to be named as a conservator of a child a Suit Affecting the Parent-Child Relationship (SAPCR) would need to be filed. This is the case whether or not you are the biological/legal parent to a child or not. For instance, if you are the mother to a child and wish to be granted certain rights and duties in relation to that child you could file a SAPCR where you are the petitioner and the child's father is named as the respondent. The SAPCR case would seek to divide up rights, duties, possession, visitation and child support obligations between you and the child's other parent.
In the situation that I alluded to above, where a family member is caring for a child and needs to ask a court to be granted rights to make decisions for that child in their care, a SAPCR would need to be filed. The rights that the grandmother in the above example could be awarded (assuming a court granted her standing to file the lawsuit in the first place) would be limited to those that are laid out in the final orders signed by the judge. These would not be parental rights, but merely rights based on being a conservator of the child.
What it means to adopt a child- legally speaking
Adopting a child from a legal perspective means that you are allowing that child to inherit property from you upon your death, among other things. Merely being a conservator of a child does not place that child in as strong a position to inherit property from you that he or she would be if you had adopted the child.
What this means is that if you die without a will your adopted child would automatically inherit the same property as any of your naturally born children. There is no distinction under the law when it comes to inheritances between adopted and biological children. It also means that if you have a relative who generally names your “children” as a beneficiary under their will that all of your children (adoptive or biological) stand to equally share in that property.
Can anyone ask to adopt a child?
In general, if you are an adult then you have the ability to ask a court to allow you to adopt a child. However, specific scenarios can complicate this fairly straightforward statement. Let’s go through a few of those scenarios right now in order to provide you with some more information on how your adoption case could potentially play out in court.
The first requirement that must be in place in order for you to adopt a child is that if the child’s parents are both living, both of their parental rights must be terminated first. Texas courts will allow you to file your petitions to terminate parental rights and for adoption to be filed simultaneously. Typically, they will be put together under one cause number.
The termination of a parent’s parental rights can either be voluntarily completed or involuntarily completed. Voluntary termination of a person’s parental rights occurs when he or she does not oppose the petition made to the judge. Involuntary termination of a person’s parental rights occurs when he or she does oppose the petition, a trial is held and the judge determines that it is in the child’s best interests that the person’s parental rights be terminated.
Another common scenario has to do with stepparents asking a court to adopt a child without terminating the parental rights to both of the child's legal/biological parents. The reason why both parents' parental rights would not need to be terminated under this scenario is that as a stepparent, your spouse (one of the biological parents to the child you are seeking adoption of) would remain on as a parent. You would replace the child's "other" parent as a legal parent of that child. That parent's rights would need to be terminated in order to make room for you to move into that role.
When consent matters in an adoption
You can also successfully adopt a child If the child you seek to adopt is at least two years old and one parent has had their parental rights terminated and the remaining parent consents to the adoption. This scenario you would need be either a former stepparent, managing conservator or a person who has had actual care, possession, and control of the child for at least six months prior to your filing the adoption case.
However, if you do not have parental consent on your side in your efforts to adopt a child then you must show that the child you seek to adopt is at least two years old and one of his parent's parental rights have already been terminated. Additionally, you would need to be a former stepparent of the child and have been a managing conservator that has had actual care, possession, and control of the child for a period of at least a year prior to the filing of the adoption case. The burden increases if there is no consent from the other parent to the child, in this scenario.
The six-month requirement for actual care, possession, and control of a child is important when it comes to adoption in Texas. This is seen as the minimum amount of time that a child can be adopted after living with you. However, if a judge believes that it is in the best interests of the child to waive that requirement it can be done.
All said consent is necessary for an adoption to occur in a handful of scenarios. First, if you are a married person and are asking a court to adopt your spouse’s child from a previous relationship then your spouse needs to consent to the adoption. Next, if the child you are seeking to adopt is at least 12 years old then that child must consent to the adoption unless the court decides that it is in the best interests of the child to allow the adoption to occur, regardless of the child’s opinion. Finally, if the child you are seeking to adopt already has a managing conservator, conservator's written consent is necessary. An exception to this final scenario is if you are the managing conservator and are also bringing the adoption suit.
Other Articles you may be interested in:
- Adoption in Texas: Essential information that you need to know
- How can a step parent adopt their step child in Texas?
- How can parental rights be terminated in Texas?
- Termination of Parental Rights and an MSA in Texas
- Involuntary Termination of Parental Rights in Texas
- Relinquishment and Termination of Parental Rights in Texas
- Terminating Parental Rights in Texas on the Absent Parent
- Voluntarily Relinquishing Your Parental Rights in Texas
- What rights does a father have in Texas?
- Fathers' Rights: Children Born Out of Wedlock in Texas?
- Advice for adopting your stepchild in Texas