Question
I have a ten year old son from a relationship that ended shortly after he was born. We moved to Washington about six years ago, and my son has had almost no contact with his father since then. Occasionally, his father sends a check for child support, but otherwise his role in our child’s life is minimal to non-existent.
I have been in a great relationship for the last three years, and plan to get married next summer. My son is very close to my fiancé, who has lived with us for most of the relationship. My son has even started to call my fiancé, “dad.” Once we are married, can my fiancé adopt my son?
Answer
In order for a Washington court to approve an adoption of your son by your fiancé, the biological/legal father’s parental rights must first be terminated by the court. The court will likely approve a voluntary relinquishment of parental rights if the biological father signs a written consent in which he agrees to give up all of his parental rights.
The written consent to termination of parental rights must contain very specific information, be signed in the presence of a witness, and can be revoked by the parent any time before the revocation is approved by the court. These and the other requirements for a written consent to relinquishment of parental rights are set out in RCW 26.33.160.
If your son’s biological father does not consent to termination of his rights, then you will have to seek an involuntary termination in order to complete a stepparent adoption by your husband-to-be. Involuntary termination of parental rights requires a showing of:
clear, cogent, and convincing evidence that it is in the best interest of the child to terminate the relationship and that the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations and is withholding consent to adoption contrary to the best interest of the child. RCW 26.33.120
Whether or not a court would approve an involuntary termination of your ex’s parental rights is highly dependent on the factual history of his relationship with both your son and you, and also on whether the father actually appears in court to contest the termination.
The effect of both voluntary and involuntary termination is to sever all legal ties between the parent and child – meaning that all duties, rights, and obligations between the parent and child are permanently extinguished. But, of course, the effect of the adoption is to impart on your fiancé the same duties, rights, and obligations of the biological/legal parent. In other words, the rights and duties of the biological parent are terminated, but only because the stepparent is ready, willing, and able to take on these rights and duties himself.
In addition to termination of the rights of the other legal parent, there are several other requirements that your fiancé will have to meet before he can adopt your son. One of the most important and time-consuming requirements is the filing of a “post-placement report“.
The post-placement report is prepared by a person with special training and education in child development and/or family services. The object of the report is to provide the court with information about your family, and to tell the court whether the adoption would be in your son’s best interests.
The report preparer will meet with you, your fiancé, and your son for interviews and observation. The post-placement preparer will also visit your home to ensure that it is a healthy, safe, and child-appropriate environment. The post-placement report further includes a state criminal, and Child Protective Services, background check, as well as a brief medical report from your fiancé and your son’s primary care physicians.
In short, the decision to pursue a stepparent adoption is a highly personal one, and requires a careful evaluation of both your legal and factual positions. In the case of a child with a living, but uninvolved, parent, the decision to permanently sever all ties to that parent should not be taken lightly. In addition, some families may find the scrutiny of the post-placement report process somewhat invasive and/or stressful. Working with an experienced family law attorney who can explain the law and procedure of adoption, as it may apply to the specific facts of your case, can help you decide whether pursuing a stepparent adoption is the right decision for your son.
