General Information regarding

the players and the process

Establishing Parental and Custody Rights Before a stepparent can adopt his or her spouse’s child, he or she must show that their spouse is the legal parent, and has legal custody, of the child. If you don’t think you can clearly show your spouse’s legal parentage or legal right to have custody of your stepchild, help from a lawyer may be in order.

1. If You Are the Stepfather Who Wants to Adopt

Parentage. Your wife will probably have no difficulty in establishing herself as the legal parent (even if her child was born out of wedlock), as long as there is a recorded birth certificate naming her the mother. If she is the adoptive mother, again there is probably no problem (unless her legal parentage was terminated through court action).

Custody. Being a legal parent is not necessarily proof that one has a legal right to custody of the child. A mother living with her child probably has legal custody if:

• She is divorced from the legal father and has a court order giving her sole or joint custody; or
• joint custody but father has voluntarily agreed to her having actual custody; or
• She became the sole custodian when the legal father died; or
• She became the sole custodian when the legal father lost his legal parentage through legal proceedings; or
• The child was born to her out-of-wedlock, and there is no court order affecting custody of the child.

2. If You Are the Stepmother Who Wants to Adopt Paternity. Your spouse will probably not have difficulty in showing himself to be the legal father of his child if the child was born in wedlock and there is a recorded birth certificate naming him as the father. If he is the adoptive father, again he shouldn’t have trouble proving his status (unless his legal parentage was terminated through court action).

A man whose child was born out of wedlock, and who has no court order declaring him to be the father, may have some problems in proving his legal status as father. He will be presumed to be the father, and any problems proving his legal status as father should be surmountable if:

• his name appeared on the birth certificate
• he lived with the mother after the birth of the child and acknowledged the child was his
• he signed a paternity statement
• he married the mother after the birth of the child

Custody. Assuming your spouse is the legal parent of his child as outlined above, and he is living with his child, he probably has legal custody if:

• He is divorced from (or was never married to) the legal mother, and he has a court order giving him sole or joint custody; or He is divorced from (or was never married to) the legal mother, who has a court order granting her custody but has voluntarily agreed to his having actual custody
• He became the sole custodian when the legal mother died
• He became the sole custodian when the legal mother lost her legal parentage through court action
• If your husband does not have a court order giving him custody and the natural mother is missing, he must be prepared to explain to the court that the mother voluntarily agreed to his having actual custody or to present some other valid explanation as to the circumstances under which he got custody of the child

 

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