In the world of Texas family law, there is a range of specific cases that you can be involved in. On the one end of the "happiness" spectrum is an adoption where you and your spouse are joyfully following the steps involved with welcoming a child into your lives. If you spend time at the family courts like the attorneys with the Law Office of Bryan Fagan, you will quickly see that adoption cases are among the only cases in the family courts where smiles are worn on the faces of the parties to a case. It isn't often that "happy" is a word that is used to describe a family law proceeding but that is exactly what most adoption cases are.
On the other end of that spectrum is the divorce case. If an adoption involves adding to a cohesive family unit, then a divorce is the exact opposite: the dissolving of an incohesive family unit. Divorce cases are rarely happy occasions and almost always involve hurt feelings, frustrated parties, and a general sense of: “I wish I was anywhere but here.” No matter what the outcome of a divorce the result is always the same. A family is broken up and two people are left to pick up the pieces separately- often with children bearing the brunt of the case.
An interesting question was presented to one of our attorneys last week from a potential client who was talking with our attorney in a free-of-charge consultation. All this person had to do was pick up the phone and speak to our office about stopping by after work to talk about a legal matter that was giving her some issues. Or, she could have gone to our website and contacted us directly to set up a consultation at the time and date of her choosing. We want to make it easy for you to reach out and speak to us about whatever is on your mind. We were fortunate to be able to meet this woman whose interesting question related to divorce and adoption simultaneously.
She asked our attorney what the impact of a divorce during an adoption proceeding would be. This person had begun the adoption process with her husband about a year ago but had finally gotten to the point where they would soon be able to adopt a little girl. However, the stress of the adoption had revealed some issues at the core of their marriage which prompted her to consider filing for divorce. However, she was having second thoughts about moving forward with the divorce at this time because of concerns over how the case would impact the stretch run of their adoption. Was it worth it to get divorced now? Should she wait? Would it be fair to adopt a child only to surprise the child and her spouse with divorce papers almost immediately after the adoption was over?
To be sure, our attorney shared with her that a divorce during the adoption case would certainly complicate matters. She and her husband had applied for the adoption process as a husband and wife. Potential placement with a child was based on the consideration of the couple as a unit. Not only was their household income considered but the stability of the home, the location and size of the home, and other characteristics depended in large part upon their being able to remain married. Now that they were inching towards a divorce that would certainly seem to complicate things a great deal.
However, our attorney ultimately shared with the potential client that she could get divorced while going through the adoption process and not put the adoption in jeopardy. It would take some strategic planning and resolve to see both processes through to the very end. This would be a situation where an experienced family law attorney could help you see both processes to fruition. While the result of each case would be quite different it was still worth pursuing both if you believed that it was necessary. Here is how that situation could play out for you and your family.
Divorce and adoption in Texas: a closer examination
Invariably, a divorce will impact you and your spouse's attempt to adopt a child. We have already discussed to an extent how the composition, location, and characteristics of your household will surely play a role in whether you can adopt a child. It is a long, tedious, difficult, and sometimes frustrating process to adopt a child. This is not to mention how expensive it is to go through with an adoption. Adding onto that scenario you are seeking a divorce simultaneously and you are not afraid to embrace a serious challenge.
The specific ways that a divorce can impact an adoption case will depend on two factors primarily: the type of adoption that you are involved in as well as the specific circumstances facing your family. While we can't speculate about your circumstances here in today’s blog post, we can discuss the types of adoptions that are viable in Texas. When we discuss each type of adoption, we will get into how a divorce can impact that specific variety of adoption and what you can do to prepare for your situation, as a result.
The key here is that in some adoption cases in Texas the biological parents of a child will be able to retain rights to that child which can make the situation even more difficult. When we think about a divorce most of the time it involves the termination of parental rights in a mother (who will almost always have parental rights) and a father (when there is a father who has been adjudicated to have parental rights). At the end of the day, the family court that oversees your adoption will have the last word on how the divorce will impact the adoption case.
Adoption by consent
In some adoption cases, the biological parents of a child will consent to the adoption. This is important because the first step in an adoption case is to have the parental rights of a parent terminated. In some adoptions, there will be a legal mother and father. In other adoptions, there may only be a mother who has legal rights to the child. Either way, to pave way for you and your spouse to adopt a child the child must not have a parent with parental rights in the picture.
In a consensual adoption, the rights of the birth parents will be given up without a prolonged court case. This means that the relinquishment of rights will be consensual and voluntary. This can be done in a variety of ways. An adoption agency may be helping you match up with a child. These are private agencies that help people who are interested in adopting a child find the right child for them and shepherd them through the adoption process. There are adoption agencies that work on behalf of religious denominations, social causes, and just about everything else under the sun.
Another option would be to work with the parents of the child that you are seeking to adopt directly. This may be the case in a situation where you and your spouse either know of a child who needs to be adopted or is even related to that child. Imagine a situation where you and your spouses are the aunt and uncle to a little boy whose father is your younger brother. In that situation, your brother and his wife or significant other may be in dire straits and may acknowledge that adoption is a better option than trying to raise a child that they cannot care for adequately. Having a willing pair of people to adopt the child in their family is an even more enticing situation to consider.
In this hypothetical situation, you can talk with your brother in advance of ever filing for adoption to learn what their situation is and what their thoughts are on the potential for adoption. You and your spouse can listen to their concerns and talk to them about your desire to adopt their son. If they are willing to consider this arrangement then you can work directly with them, perhaps with the assistance of an attorney, to make sure that the steps of adoption are followed properly including the termination of parental rights.
In this type of adoption, a divorce may ruin your plan to have a private adoption directly with the parents through a family court. Your brother in the hypothetical example that we have been discussing today may be agreeable to the adoption in part because you and your spouse are married to one another. However, if you make it known that you are seeking a divorce from your spouse before the adoption is complete.
Adoption via foster care
Families across the state of Texas have taken on the awesome responsibility of caring for children that are not theirs via the foster care system. These families are known as "foster families." The children that are in foster care in Texas do not have parents with rights attached to them. This means that going into foster care many of these children have already seen their parents have their parental rights terminated.
When a foster family takes on the responsibility of housing and caring for a child, it does so with no assurance that the child will be in the house for a certain period. Many times, the family dynamic will be harmed by having a foster child removed. This is because the child integrated seamlessly into the family. Now that child is being adopted out of the home and the family may be sad to learn that a family member of theirs will no longer be living with them.
If you are a foster father or foster mother who is interested in adopting a child that you are currently fostering, then you need to become aware of whether the child’s parents still possess their parental rights.
An adoption court will have the last word on approving your application or motion to adopt. An adoption involving a foster family can end in a variety of ways. The first option is probably the least likely- that the adoption would be allowed to continue with either your or your spouse as the sole adoptive parent. I say that this is unlikely because I think the next option is more likely to occur if you and your spouse were to get a divorce.
That option would involve the adoption proceedings ending altogether because of the divorce. Your ability to adopt a child as a foster family is a result of your history of being a stable family unit that can provide consistency for a child who sorely lacks that characteristic in their daily life. As a model of consistency and stability, you were allowed to foster children on behalf of the state of Texas. However, an impending divorce means the stability of your home is in question and the adoption of one of your foster children may no longer be possible.
Another option would be that you and your current spouse would both be able to adopt the child, thus establishing parental rights for both of you. The divorce would occur and then you would both be given a possession schedule, conservatorship rights, and orders regarding child support as a part of the divorce.
We see frequently that when a stepparent marries the parent of a child that stepparent pledges to not only love their spouse-to-be but the child as well. Stepparent adoptions hinge on being able to gain consent from the other parent for the adoption to occur, as well as the desire of a stepparent to commit to an adult. It is quite a commitment for a stepparent to simply marry a person who already has a child. It is another matter altogether to commit to marrying a person with a child and then move to adopt that child himself or herself.
The main benefit of a stepparent adoption case is that the stepparent is attached legally through marriage to the child's biological parent. If you and your spouse were to file for divorce during the adoption case, likely, the adoption would not continue. We know that in a stepparent adoption case, a family court will require that you be married to the biological parent at the time of a final adoption proceeding. Since your divorce may go through before the adoption and would at worst happen shortly after the adoption hearing it is probable that the adoption case could not proceed in the event of a divorce.
In some cases, you and your spouse may be attempting to adopt A child who lives in a different country than the United States. In that situation, the adoption laws of the foreign country would control the process. This can make things more complicated and present additional challenges for you and your spouse to consider. If you and your spouse get divorced before the end of the adoption process, then that court in a different country will apply that country's laws to your adoption. What we see in a situation like this is that many countries do not allow single adults to adopt a child. Only married people may adopt children based on the adoption laws of several foreign countries. As we saw with stepparent adoptions, a divorce before the adoption of an international child would likely terminate the process.
What are the factors that will help a court determine whether to allow an adoption to occur despite a divorce?
As in any family law case involving a child, the best interest of the child will be considered first and foremost. If it is found that the child would suffer hardship or difficulty as a result of being adopted into a family of divorce, then it is likely that the adoption would not be approved.
Next, as we have seen with other divorce circumstances the wishes of the biological parents will likely have some impact on the ability of you and your soon-to-be ex-spouse to adopt A child. The birth parents of the child that you are seeking to adopt may want to consent to adoption only if you and your spouse are married to one another. A divorce would throw a wrench into the situation and may put the adoption into a precarious position. With international adoptions, you certainly need to consider the adoption laws of the country of origin and whether single persons can adopt in that country.
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