As the family dynamic shifts from the nuclear family to a more extended and/or unconventional family unit, persons other than parents are often helping to raise children. For example, a grandparent might raise a child if the parent is unwilling or unable. Or, a step-parent may become a primary caregiver while one parent is not involved with the child.
In some cases, adoption of the child may be a logical step by another party. Step-parent adoption is one of the more common types of adoption. This may occur when one parent has passed away, voluntarily terminated his/her rights, or had his/her parental rights terminated. Without one of these precursors, a parent’s consent must be obtained in order for another party to adopt the child. This protects the birth parent and his/her fundamental right to raise the child1.
However, Indiana statues provide for exceptions to the consent requirement. One such exception occurs if the person petitioning for adoption proves by clear and convincing evidence that the parent is unfit to be a parent and the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent, the consent requirement is waived2. However, waiver is not taken lightly, and the rights of the natural/birth parent are strenuously protected.
A recent Court of Appeals case examined the issue of step-parent adoption and consent3. In this case, the child’s step-mother petitioned to adopt the child, but her petition was denied by the trial court. On appeal, step-mother argued that the court erred when it required the consent of the natural mother.
The evidence showed that Father had been granted physical custody of the child upon the divorce of the parents, with Mother getting visitation “from time to time”. Mother did not consistently pay child support and went for lengthy periods either seeing the child very little or not at all.
The Court held that Mother had been found in contempt of willfully failing to pay child support, even though she had been employed and was able to provide support. The Court noted that failure to pay child support when one is able does not automatically cause a petition for adoption to be granted. Because the trial court had not heard evidence on the best interests of the child, the case was remanded (sent back to the trial court) to determine the best interests.
Adoption without consent is not a task taken lightly, and United States and Indiana law both vehemently protect parent’s fundamental rights. However, there are circumstances that exist that can allow for adoption without the parent’s consent.
We hope that this blog has been helpful in exploring exceptions to consent for adoption. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog was written by attorney, Jessica Keyes.
