A Florida stepparent adoption is the legal process where married stepparent can adopt his or her spouse’s child and become equal parents as if the child were born to both of them. Although our law office is in Orlando, we help stepparents throughout Florida become the legal father or mother of their spouse’s child. As a result of the stepparent adoption, the adopting parent will share full parental rights of the child. Legally, it will be as if the child was born to the natural parent and the stepparent. The birth certificate is amended to reflect the names of the stepparent and the natural parent.
With the recent legalization of gay marriage throughout Florida, stepparent adoption is now available for same-sex couples as well. As of January 2015, same-sex couples are now able to get married so gay and lesbian couples can adopt the child of their same-sex spouse. Previously, gay and lesbian couples would have to go through a slightly different process called a second parent adoption.
We help clients throughout the state of Florida, but we file stepparent adoptions in the Orlando area, usually in Seminole or Orange County. You generally do not need to be an Orlando resident or live in one of those counties to work with us in completing your stepparent adoption.
Stepparent adoption is governed by Chapter 63 of the Florida statutes.
The first step of an Florida stepparent adoption is to see whether the stepparent can actually legally adopt. As long as the person can be an effective parent and is married to the legal parent of the child, the person should be able to legally adopt.
The court case then starts by filing the Petition for Adoption. The petitioners are the stepparent–the person who is adopting the child–and the spouse of the stepparent. The petition for stepparent adoption must include a variety of information, including:
- Birth date and place of birth of the child
- What name should be given to the child, if the child’s name is being changed
- Statement of how long the stepparent has lived with the child
- Reasons why the stepparent wants to adopt the child
Filing this petition starts the process. Then the absent parent has a chance to oppose the adoption. If the absent parent does not contest the adoption or if the absent parent has consented, then the court will finalize the adoption, which will give the child a new birth certificate showing the child’s new name and parents.
Birth Father’s Rights
If a birth parent still has parental rights over the child, then in most cases the Court must conclude that either that birth parent has consented to the adoption or that person’s consent is not necessary.
We try to identify first if consent from the birth parent is even necessary; if it is not, we can continue with the adoption. If it is necessary then we must attempt to obtain consent from the birth parent.
If we cannot get the absent parent to consent to the stepparent adoption, the best option may be to file to terminate the parental rights of the absent parent. Under Florida Statute §63.064, termination of parental rights of the absent parent is generally allowed if that parent has either:
- Deserted the child without means of identification or has abandoned the child and/or
- Has been declared incompetent and restoration of competency is medically improbable.
If you don’t know where the birth father or mother is, then Florida law lists several steps that you must take to try and locate the birth parent before proceeding with the adoption.
Note that consent is generally not necessary if (1) the parent has executed a surrender document witnessed by two witnesses; (2) the parent has abandoned the child; (3) the parent has engaged in behavior that endangers the life, safety, well-being, or health of the child; (4) the parent is incarcerated for a certain period of time; (5) a child has been adjudicated dependent and the parent has not complied with the case plan filed with the court; or (6) the parent has engaged in “egregious conduct” that threatened the health and well-being of the child or a sibling of the child.
In addition, not every parent must consent to the adoption. Per Florida statutes, the only individuals required to consent generally are (1) the mother of the child, (2) the father of the child if the child was born while the father was married to the mother, the child is the father’s by a prior adoption, the child has been adjudicated by the court to be the father’s child, the father has filed an affidavit of paternity or is listed on the child’s birth certificate, or finally, if the father has filed an acknowledgment of paternity in the Florida putative father registry. But note that Florida court decisions may alter the list of who must consent to an adoption.
Should we find the parent whose rights are to be terminated, we must serve a copy of the adoption documents. Serving the documents is a particular method of giving the required papers to the person using the procedure that Florida law required. In general, there are four ways to serve any person: (1) personal service, (2) by mail, (3) hand delivery, (4) or constructive service. For adoptions, personal service means delivering a copy of the adoption petition by a sheriff’s deputy or private process server to the parent. All petitions must be served by personal service. However, if the parent cannot be found, Florida law generally allows us to serve the parent whose rights are being terminated by constructive service. Constructive service means service by publication–a legal notice is posted in a court approved publication (certain newspapers).
If all the parties are available and the absent parent consents to the adoption, the entire stepparent adoption process could be wrapped up in about two months if we file in the Orlando area.
Can gay and lesbian couples do a stepparent adoption? Yes. As of January 6, 2015, with the legalization of gay marriage statewide, stepparent adoption in Florida is available to gay and lesbian married couples. This takes the place of what was previously known as a second parent adoption.
As a result of the stepparent adoption, the stepparent who is adopting will become the full legal parent of the child. It will be as if the child was born to the stepparent. Any rights of the absent birth parent will be terminated as well.
Stepparent Adoption Procedure
A stepparent adoption in Florida has the following steps:
Step #1: Consent
The first part of a stepparent adoption is for the non-custodial parent to give consent. For example, if you are the biological mother and wish for your husband or wife to adopt through a stepparent adoption, then the biological father generally must consent to the adoption. If the non-custodial parent objects to the adoption, you’ll have to work with your attorney to overcome those objections.
Note that per Section 63.064 of the Florida Statutes, consent can sometimes be waived. The law allows consent to be waived generally under the following circumstances:
(1) A parent who has deserted a child without means of identification or who has abandoned a child.
(2) A parent whose parental rights have been terminated by order of a court of competent jurisdiction.
(3) A parent who has been judicially declared incompetent and for whom restoration of competency is medically improbable.
(4) A legal guardian or lawful custodian of the person to be adopted, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days or who, after examination of his or her written reasons for withholding consent, is found by the court to be withholding his or her consent unreasonably.
(5) The spouse of the person to be adopted, if the failure of the spouse to consent to the adoption is excused by reason of prolonged and unexplained absence, unavailability, incapacity, or circumstances that are found by the court to constitute unreasonable withholding of consent.
However, sometimes the consent of the absent biological parent is not required. We can work with you to determine whether or not you need to obtain consent.
Secondly, generally the child being adopted must also consent if he or she is 12 or older.
In some less common situations, other people must consent as well.
Step #2: Complete and file the Adoption Petition
A Petition for Stepparent Adoption is the formal request for the Court to grant the adoption and give parental rights to the stepparent. The petitioner, which is the stepparent asking for parental rights, files the petition along with several other supporting documents legally required under Florida law.
The filing of this petition is what opens the case before the Court.
Step #3: Coordinate a hearing
Once the petition for the stepparent adoption in Orlando is filed, you’ll find out which judge is assigned to your case. From there, it is just a matter of scheduling a time with your attorney and the judge’s availability for a final hearing on the adoption. If you’re working with us, we’ll then send you a Notice of Hearing of the scheduled time.
Step #4: Hearing
The hearing is a formal, but friendly, meeting with the judge after which he will rule on the adoption. Usually the hearing takes 5-10 minutes, and the judge will ask a few questions to make sure that everyone wants the adoption to happen and the procedures were followed. After the hearing, the adoption will be finalized and the stepparent will have full legal rights to the child.
All of the stepparent adoption judges in Orlando, Florida, area are friendly–the adoptions are usually the highlight of their day.
The judgment entered at the hearing is what grants the stepparent with full parental rights. Specifically, the effect of the adoption judgment is outlined by Section 63.172 of the Florida Statutes:
A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
(a) It relieves the birth parents of the adopted person, except a birth parent who is a petitioner or who is married to a petitioner, of all parental rights and responsibilities.
(b) It terminates all legal relationships between the adopted person and the adopted person’s relatives, including the birth parents, except a birth parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes, including the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship, except that rights of inheritance shall be as provided in the Florida Probate Code.
(c) Except for rights of inheritance, it creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.
(2) If one or both parents of a child die without the relationship of parent and child having been previously terminated and a spouse of the living parent or a close relative of the child thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption and, unless the court orders otherwise, the adoption will not terminate any grandparent rights delineated under Chapter 752. For purposes of this subsection, a close relative of a child is the child’s brother, sister, grandparent, aunt, or uncle.
Step #5: New birth certificates
Once the adoption is finalized, you can apply for amended birth certificates that list the new mother or father. The old birth certificates will be sealed. If you’re working with us your attorney, we do this for you.
Usually you do not have to tell grandparents about the stepparent adoption, but sometimes circumstances do require notifying the grandparent. Generally, the grandparents are notified only if the child has lived with a grandparent for at least six months within the last two years before the filing of the stepparent adoption.
Generally nobody can challenge the adoption after one year (but there are a few exceptions). The relevant section is 63.142 of the Florida Statutes:
“At the conclusion of the hearing, after the court determines that the date for a parent to file an appeal of a valid judgment terminating that parent’s parental rights has passed and no appeal, pursuant to the Florida Rules of Appellate Procedure, is pending and that the adoption is in the best interest of the person to be adopted, a judgment of adoption shall be entered. A judgment terminating parental rights pending adoption is voidable and any later judgment of adoption of that minor is voidable if, upon a parent’s motion for relief from judgment, the court finds that the adoption substantially fails to meet the requirements of this chapter. The motion must be filed within a reasonable time, but not later than 1 year after the date the judgment terminating parental rights was entered.”