Adoptive families give a permanent home to children. It is a lifelong commitment to provide for the child’s mental, physical, emotional, educational, cultural, and social needs. Beginning the process of adoption is emotional, stressful, and exciting. Our family law attorney Austin is here to make the legal process as smooth and joyful as possible.
Avenues to Adoption
Under Texas law, a child may only have one legal set of parents. So, to first adopt a child at least one parent must have had their parental rights terminated by the Court. The Court is charged with determining if this would serve the best interests of the child. Accordingly, the law requires multiple unique studies and reports demonstrating the best interest of the child.
The extensive, specific requirements of multiple adoption studies, reports and the ensuing court proceedings can be overwhelming for a non-attorney. To successfully navigate the unique circumstances of your adoption, retaining counsel is a must.
Custody v. Adoption
Occasionally, the Court will grant conservatorship (custody) by way of a Suit Affecting Parent-Child Relationship (SAPCR) of a child to an adult who is not the child’s biological parent. Conservatorship of a child generally includes a multitude of rights akin to the rights of a biological parent.
However, a conservatorship varies in one distinct manner. The only rights given to a conservator are those expressly granted to them by the Court. For example, a conservatee does not have the automatic inheritance rights an adoptee does. Meaning, a conservator-child relationship requires a will to transfer property to the child after a death. Whereas an adopted child will automatically inherit the property the same as any natural-born child.
Who is eligible to adopt?
For a child to be eligible for adoption, at least one biological parent’s rights must be terminated. It is then up to the Court to determine if the adult seeking adoption is qualified to care for the child; as the circumstances vary from child to child, the qualifications for an adult change depending on the child’s specific circumstances.
A court can establish the adoption of a child through a few different avenues, including:
- Stepparent Adoption. In this case, stepparents can seek to adopt a child without the termination of the biological rights of both parents. A parent may retain their parental rights if they are married to the stepparent pursuing adoption. However, the other biological parent’s right must be terminated to allow for the adoptive parent.
- Biological rights of both parents have or will be terminated. In Texas, a suit to terminate the biological rights of the parent of the child must be filed, or both living parents must have had their rights terminated to adopt the child.
- No Parent Consent. A child may be adopted without parental consent if the child is at least two years of age, and the following:
- __At least one biological parent’s rights have been terminated.
- __The adult seeking the adoption is the child’s former stepparent who has proven care, possession, and responsibility of the child for at least six months before filing for adoption
- Parent Consent. A child is eligible for adoption if they are at least two years old and at least one biological parent has had their rights terminated. The non-terminated parent may consent to adoption by:
- __a Managing Conservator
- __the child’s former stepparent
- __an adult who has proven care, possession, and responsibility of the child for at least six months before filing for adoption
Additional Adoption Consent
In certain circumstances, additional consent to the adoption is required. Including:
- If the child is 12 or older, the child must agree to the adoption. However, the Court may waive this requirement if it is in the best interest of the child.
- If the child has a managing conservator, their written consent is needed. Unless the managing conservator is seeking the adoption in question, their consent is implied. Additionally, the Court may waive this requirement in unique circumstances.
- If a married person is seeking to adopt a child, the spouse must also join the adoption petition.
Voluntary Parental Rights Termination
In this case, a parent presents the Court with their suit to terminate their biological rights. The Court will then determine if this termination is in the best interest of the child.
The Court may decide to terminate the biological rights if the parent knowingly signed an affidavit of voluntary relinquishment or an alleged father signed an affidavit waiving interest. These documents alone are not sufficient to terminate biological rights. The Court must determine the termination is in the child’s best interest.
Involuntary Parental Rights Termination
A high legal standard must be met for involuntary termination of parental rights to succeed. Most often, Texas Courts are required to make their decision based on clear and convincing evidence that termination of rights is in the best interest of the child. The evidence must be supported by one of the following reasons for termination:
- the parent engaged in criminal conduct
- the parent abandoned or did not support the child
- the parent is otherwise deemed unfit to parent
The Best Interest of the Child
The best interest of the child is a legal standard used by Judges whenever a child is involved in a case. Generally, when a case involves a child, the judge is only concerned about their best interests. The standard for the child’s best interest considers the following factors:
- the parental abilities of potential caregivers
- the emotional and physical needs of the child
- home stability
- parenting omissions or acts that suggest an unhealthy parent-child relationship
- excuses for any omissions or acts of the parent
- future plans for the child
- occasionally the child’s desires
Required Adoption Proceeding Studies
As mentioned, the Court requires various studies and reports to inform their decision. Typically, these studies include:
- evaluations of prospective home environments
- assessments of the child’s relationship with all involved adults
- personal interviews of the child and potential adoptive parents
- consideration of criminal history reports for anyone living in the home
- observations of the child in different home environments
Additional reports may be required to provide the prospective adoptive parents with all the information needed to care for the child properly.
The adoption process can seem overwhelming. The requirements are extensive to protect the child, just as you will. Our family law attorney Austin is here to help all the way through. Give us a call or send us a message today to schedule your free initial consultation.
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