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Legal Rights of Non-Biological Parents

November is National Adoption Month. Parents of adopted children and prospective parents may be wondering what legal rights a non-biological parent has. These rights will often depend on relevant adoption laws, rights reserved by the biological parents, and whether previous parental rights have been terminated.

If you're thinking of adopting a child this month, or you've adopted or fostered a child in the past, here is an overview on the non-biological parental rights:

Non-Biological Parent Rights

Once an adoption is finalized, a non-biological parent would have the same legal rights and liability as a biological one. Generally, parents have the right to make decisions regarding a child's education, health care, and religion, among other things. These rights extend to non-biological parents who have legally adopted children. If parents (biological or non-) are separated or divorce, these parental rights can extend to child custody and visitation. (And parental liability may extend to child support.)

Even foster parents will retain some parental rights. Some states have adopted a Foster Parent Bill of Rights which protects a foster parent's rights to, among other things:

  • Receive a foster child's relevant biographical and medical information prior to or at the time of placement;
  • Receive notice of placement department plans or court proceedings affecting a child's placement; and
  • Refuse a child's placement in the foster home or request the removal of the child from the foster home without reprisal.

For adoptive parents, there are federal and international adoption laws, and even state adoption laws can vary. These variations may impact the rights of non-biological parents. Many of these laws affect the rights of non-biological parents by reserving certain rights for biological parents.

Biological Parent Rights

In some cases, biological parents may retain some parental rights. These rights could affect parental rights in stepparent adoptions or same-sex parent adoptions. Biological parents of a child have the right to make decisions regarding the child's care, so long as it does not jeopardize the child's health and safety. These rights could be terminated, however, either voluntarily or involuntarily.

In order for a voluntary termination of parental rights to take place, most state laws require one or both birth parents to legally "consent" to the adoption. Legal consent can only occur when birth parents agree to relinquish all the rights and liabilities of a child and allow an adoption to take place. Normally this legal consent must be in writing and done in front of a judge or other court-appointed person, and the requirement applies equally to biological mothers and biological fathers who have established paternity.

There are other ways to obtain a consensual termination of parental rights. If one or both birth parents are deceased or have lost their parental rights for other reasons, consent may be given by:

  • A guardian of the child;
  • A court that has jurisdiction over the child;
  • An agency or person that has custody of the child; or
  • A close relative of the child.

Once consent to terminate parental rights is given, it is normally irrevocable, in the interest of having a lasting and binding agreement and ensuring a stable environment for the child. Most states do not allow biological parents to revoke their consent to adoption. The states that do allow revocation of consent to adopt reserve it for extremely limited situations, like if:

  • Fraud or coercion was involved in obtaining consent;
  • The state allows a waiting period for revoking consent;
  • The state determines that revoking consent is in the best interest of the child; or
  • The biological and non-biological parents agree to revocation.

Terminating Parent Rights

Parental rights could also be terminated involuntarily. Involuntary termination of parental rights is normally not the preferred option, and is usually reserved for extreme cases. Courts may terminate parental rights if a father never establishes paternity or if one parent violates the law.

State laws on involuntary termination can vary. Most require some evidence of:

  • Severe or chronic abuse or neglect (of the child at issue or other children in the household);
  • Sexual abuse;
  • Abandonment;
  • Long-term mental illness or deficiency of the parent(s);
  • Long-term alcohol or drug-induced incapacity of the parent(s);
  • Failure to support or maintain contact with the child; or
  • Involuntary termination of parental rights to another child.

Involuntary termination could also be based on a criminal conviction. Certain felonies and crimes of violence against a child or another family member allow the court to terminate parental rights and the child-parent relationship. Also, if a parent is required to be imprisoned for a length of time that requires the child to enter foster care, and there are no other alternatives for the child, the parent could lose his or her parental rights.

Navigating non-biological parental rights can be difficult, both legally and emotionally. If you need help with an adoption, or otherwise asserting your rights as a non-biological parent, you should contact an experienced adoption attorney near you.

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