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STEP-PARENT ADOPTION: A GOOD IDEA?

We are living in an age of blended families. What is a blended family? Divorcing couples often have minor children of the marriage and as part of any divorce settlement agreement or judgment after trial, each party will typically have shared parental responsibility, timesharing and a child support obligation regarding these children. For the purpose of this article and in a typical divorce case, the former wife/mother will have the majority of the time with the minor children, and the former husband/father will have a structured timesharing schedule with the children. (Adult, non-disabled children are deemed emancipated adults and are outside the scope of this article. Under Florida law, ‘emancipation’ occurs when the child turns 18 or graduates high school on or before the 19th birthday, whichever is later.)

It is not uncommon for the former wife to enter into a new relationship after the divorce, perhaps years later. Indeed, remarriage among divorced women to a new spouse is common. But how does the law treat the rights of the former husband/father should the new husband/step-father of the now-remarried former wife wish to adopt the children and make the children part of the new couple’s family and life? In short, to make the step-children his own children.

To begin, the new husband/step-father is permitted under Florida law to seek to adopt the children of the former marriage. This is referred to as a ‘step-parent adoption.’ However, the former husband/father is still the biological father of the children and has certain well-defined rights as set out in the divorce judgment, including the right to object to a step-parent adoption of his children from the dissolved marriage. To be clear, for the former husband/father to assert his rights he must not have abandoned the children following (or, certainly during or prior to) the divorce. If the former husband/father objects to the step-parent adoption, his objection can be overcome by proving abandonment. There are many appellate cases defining the circumstances that constitute abandonment, but long-term failure to provide child support, deliberately failing for a significant period of time to exercise timesharing with the children, wilfully refusing to share in any of the activities or life-events of the children, and the like are all indications of abandonment. If abandonment is proven, then the objection of the former husband/father to the step-parent adoption can be overcome and the adoption by the step-father will likely succeed.

What is the effect of a step-parent adoption? As with any adoption, the step-parent becomes the legal parent of the children and the former husband/father will become a ‘legal stranger’ to the children. No longer entitled to timesharing, to shared parental responsibility or to initiating or receiving any communication to or from, or contact with the children, the former husband/father will legally disappear from the lives of the children permanently and irrevocably. On the other hand, the former husband/father’s obligation to provide child support and/or health care coverage for the now-adopted children will terminate but for any past-due arrears in support. (Note that many ‘new’ families agree to continue contact between the now-adopted children and the former husbands/fathers who will agree to the step-parent adoption to placate the ‘new’ family and stay in their children’s lives.)

It is important to state that once the new husband has adopted the children, they are now his responsibility as would be the case with any biological parent. Be careful, however, in seeking a step-parent adoption: In the event the new marriage also ends in divorce (and the divorce statistics for second marriages are not encouraging), the new husband will face a child support obligation similar to any other father of minor children in a divorce, even if the second marriage is extremely short in duration following the step-parent adoption. And the former husband is free of any obligation to contribute to the ‘new’ child support. In the absence of a step-parent adoption, is there any obligation under Florida law for the new husband to provide child support to his soon-to-be former wife should they later divorce? No. Even if the second marriage lasts many years ending while the children are still minors? Still no. So, as we say in the law, ‘Caveat emptor’ (“Buyer beware”).

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