Today, more than ever, children are being raised by third parties, including step-parents. When the non-custodial, biological parent does not stay involved in his/her child’s life, this often leads the step-parent (and child) to want to adopt. If the other biological parent is deceased or consents to the adoption, there is no legal barrier to prevent the adoption (assuming the other statutory requirements for adoption are met, such as having a home study). This blog address when a (living) biological parent’s consent is not required for the adoption filing, the biological parents right to contest his or her lack of consent to the adoption, and the legal issues and process that occurs if the biological parent objects and contends consent is necessary.
There are several statutory provisions that allow a step-parent to file an adoption without the consent of the biological parent.1 However, the biological parent must be given notice of the proposed adoption proceeding without his or her consent. There are four common situations where consent is not necessary. Any one eliminates the need for consent: The first is where the bio parent has gone a year without significantly communicating with the child without justifiable case—he or she just didn’t. The second, and a term associated with the “deadbeat” parent, is where the bio parent with a child support duty does not pay child support for the child for a year when able to do so (he or she is not just down on his luck and cannot). The third situation where consent is not required is where the bio parent is unfit, which may be because he or she is involved in gang activity or a chronic substance abuser and will never be able to have a meaningful relationship with his or her child. The fourth common category is where a bio parent only makes token efforts at communication or to support his or her child.2
However, biological parent has the right to contest the adoption and be heard on consent. This is because a biological parent has a fundamental, constitutional right to raise his or her child that is ordinarily superior to any other person. This fundamental right applies in all state courts under the due process clause of the United States Constitution’s Fourteenth Amendment.3 The right to contest consent is how this right is protected.
When a step-parent is faced with a contest to the adoption by the bio parent, he or she must carefully understand the waiver exception to consent that applies (normally, this just makes the process more difficult—if an exception truly applies, and the adoption normally is granted). Then, with counsel, the step-parent must gather and present on the evidence—normally through step-parent and his or her spouse and documents—that demonstrate the exception applies and consent is not needed. This must be done carefully and precisely with clear and convincing evidence because there is a high burden of proof to show consent is not necessary.
This process is how the fundamental right is protected by a higher evidentiary burden—but not one so high a child’s best interests cannot be met, and contested adoptions be successful. After the hearing on the adoption contest to consent, the court will deny the motion to contest the adoption or dismiss the adoption petition. This then may be appealed by the losing party. If the bio parent’s contest is denied, the adoption case proceeds.
So, with careful analysis and good legal guidance, contested step-parent adoptions may be successful. This blog outlies common bio parent challenges to the position their consent to step-parent adoption is not necessary and how the court addresses these issues. We hope this blog helps you better understand contested step-parent adoption in Indiana and the constitutional issues a contested adoption raises. This blog was written by Ciyou & Dixon, P.C. attorneys who handle adoptions of all types throughout the state. It is written to provide general information only. It is not legal advice, or a solicitation for services. It is an advertisement.
- Indiana Code 31-19-9-8.
- There are several decisions by the Indiana Court of Appeals or Supreme Court that explain what evidence is sufficient to satisfy these exceptions to consent when challenged.
- The United States Supreme Court, in striking down as Washington State statute that easily gave third-parties custody, said that “[t] liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court” and protected by the due process clause of the United States Constitution. Troxel v. Granville (US 2000).
