Porter Legal Group is here to give a general overview of adoption and answer some common questions about this type of case. Because the specific facts of each situation make each adoption case different, we are here to consult with you and inform you about the facts of your case before attempting to file for adoption.
Questions about Adoption
How is adoption different from gaining custody of a child?
At times, the court may use a Suit Affecting Parent Child Relationship (“SAPCR”) to give Conservatorship (custody) of a child to someone who is not the child’s biological parent. Conservatorship can include a variety of different child-raising rights similar to the rights that a biological parent generally has when the child is born.
However, the rights of a conservator are different from parental rights because they only include the rights that a judge lists in the court order.
Because of this, adopted children have greater, automatic inheritance rights than children who have simply been raised by a conservator that is legal.
Through the process of adoption, a child becomes the legal child of the adoptive parents for all purposes including inheritance.
Who can ask to adopt a child?
Generally, an adult is able to ask the court to adopt a child who may be already adopted. Whether or not a child may be able to be adopted depends on the circumstances of the case. Explanations of a few common scenarios are below.
Scenario A: Both parents have or will have their biological rights terminated.
Scenario B: Stepparent Adoption
Scenario C: Parental Consent
Scenario D: No Parental Consent
When can a child be adopted?
A child can be adopted after living with the petitioner for six months, but this requirement can be waived if the court finds that it is in the best interest of the child.
Who needs to agree to the adoption?
If a married person asks to adopt a child, the person’s spouse must join the petition for adoption as part of a joint agreement.
If a child is at least 12 years old, the child must consent to the adoption unless the court waives the child's best interest is in jeopardy from the perspective of a judge.
If the child has a conservator who would be currently be managing them, his or her written consent is required unless the managing conservator is also the one bringing the adoption suit or the court waives this requirement because consent has been refused or revoked without some sort of good cause.
Does adoption require termination of parental rights?
Since the fact that children may only have one legal set of parents, adoption requires that the parental rights of biological parent(s) be terminated to make room for the exclusive rights of the new, adoptive parent(s). A parent’s rights may be terminated either voluntarily or involuntarily.
Voluntary Termination of Parental Rights:
Voluntary termination of parental rights is one of the options that could be taken under the Texas Family Code. For instance, a parent can bring their own suit to terminate their own parental rights.
However, the court will be required to rule that the voluntary termination is in the best interest of the child, which is the main case for the process.
The court is also able to voluntarily terminate parental rights if the parent has signed an affidavit of voluntary relinquishment or an alleged father signed an affidavit waiving interest. Even if these documents are done correctly, the court will still have to order the termination of parental rights, the document alone is not enough, as the court system is still set to be involved throughout the process.
Involuntary Termination of Parental Rights:
Involuntary termination requires that a high legal standard will have to be set and be met. Generally, courts are required to find by clear and convincing evidence that termination is in the best interest of the child and is supported by one of the stated legal reasons for termination of parental rights.
The reasons a parent's rights can be involuntarily taken away fall into the following categories:
The Parent Abandoned or did not support the child
The Parent Endangered the Child
The Parent Engaged in Criminal Conduct
The Parent is otherwise unfit.
What exactly are the best interests of the child?: The Legal Standard
The best interest of the child is a common legal standard that judges use in cases that involve children.
To decide what is in the “best interest of the child” the court will usually consider, among other factors:
the child’s emotional and physical needs,
the parental abilities of potential caregivers,
future plans for the child,
parenting acts or omissions that suggest the parent-child relationship is unhealthy,
excuses for any acts or omissions of the parent,
the child’s desires (sometimes).
How does the court make its final decision?
Generally, the court’s main concern in making its final decision is doing what is best for the child, as stated earlier. The judge will make this decision after hearing the testimony of the involved parties, examining the required reports and studies and then applying the law that applies to your particular situation to determine the guidelines that have to be met moving forward.