ADOPTION
Who May Adopt and Be Adopted
A child residing in Texas may be adopted if:
| a. | Both parents are deceased or had their parental rights terminated by court order; or |
| b. | One parent is deceased or had their parental rights terminated and the person adopting the child is the stepparent of the child of the parent whose rights have not been terminated; or |
| c. | The child is at least 2, one parent’s rights have been terminated and the person seeking to adopt has cared for the child at least 6 months preceding the adoption and the other parent consents to the adoption; or |
| d. | Same as c. above but the parent doesn’t consent and the child has been cared for by the adopting person for at least 1 year prior to the adoption. |
Termination and Adoption
The most common situation is when the parents of the child are divorced, mom has primary custody, and dad is not visiting the child and is not paying child support. In those cases, dad may be willing to give up his parental rights to the child so that mom’s new husband can adopt the child (and also to stop having to pay child support). If so, dad can sign an Affidavit of Relinquishment of Parental Rights. A petition to terminate parental rights and for adoption can be filed combining the termination of dad’s rights and asking for the stepparent to be allowed to adopt the child. The Affidavit of Relinquishment is filed at the time the petition is filed or later if necessary.
Stepparent Adoption Procedure
After the petition to terminate parental rights and for adoption is filed the following things need to happen:
| a. | The court orders a Social Study to do a background check on the home life and background of the parties; |
| b. | The court appoints an amicus attorney to represent the child; |
| c. | The stepparent needs to have a finger print card made and submitted to the Department of Public Safety to reveal any prior criminal history; |
| d. | The amicus needs to meet with the parents and perhaps the child in order to form an opinion as to whether the adoption is in the best interest of the child. |
When everything is completed there will be a hearing before the court at which the parents, the child, the amicus attorney and the attorney for the parents will all appear. The court will first hear the termination testimony and order that the rights of the other parent be terminated. The court will then hear testimony as to why the adoption is in the best interests of the child. The amicus attorney will tell the judge that he or she thinks that the adoption is a good thing.
If the child is old enough, the judge will ask the child if he or she wants to be adopted and a few other questions. The court then pronounces the adoption and all the relatives and friends can take pictures of the child and parents with the judge. As the saying goes, “It’s the only good thing that happens at the courthouse!”
After the Adoption
After the adoption hearing, the clerk of the court will send the paperwork to the Bureau of Vital Statistics. The attorney for the parents will send a request and a form to the BVS asking for a new birth certificate reflecting the new parents of the child. It may take up to 6 months to get the new birth certificate. The BVS operates on their own schedule. If the adoption order changed the name of the child, the new birth certificate will show the new name.
Delinquent Child Support
Although the rights of the father may be terminated by court order effective on the hearing date, he still owes any back child support up to that date. Termination of parental rights does not retroactively wipe out unpaid child support.
Custody vs. Adoption
Frequently grandparents have been caring for a child that has been left with them by their son or daughter and neither of the parents are willing or able to care for the child. If one or both of the parents are unwilling to relinquish their parental rights so that the grandparents can adopt the child, the grandparents can seek primary custody of the child instead. In that case the court will order both parents to pay child support to the grandparents and set out some sort of visitation schedule for them to be able to see the child. Once the grandparents have a court order for custody, they can put the child on their health insurance.
Guardianship vs. Custody
People frequently confuse guardianship of a child with custody. Grandparents frequently end up taking care of a child that the parents have abandoned and they want to get the child covered under their health insurance. The following explains why they really want custody and not guardianship.
A person is appointed the guardian of another person under the Texas Probate Code. The person over whom the guardian is appointed is called the “ward”. The ward must either be a minor or if they are an adult, then the ward must be incapacitated to the extent that they are unable to care for themselves or their business affairs. Before a guardian is appointed they must post a bond equal to all of the assets owned by the ward. Each year thereafter they must file an inventory and account for every dollar received and every dollar spent on the ward. In other words, being a guardian is expensive and burdensome and should be avoided if there is any other way to care for a person. A person will not be appointed guardian of a child without good reason. Getting coverage for the child under the guardian’s health insurance is not a good enough reason.
A person can apply for custody of a child under the Texas Family Code. If both parents agree to let the grandparent have custody, then the court will usually approve it and the child can be covered under the grandparents’ health insurance. No bond is required and there is no annual accounting to be filed with the court. The custody orders will remain in place until further order of the court or until the child turns 18. The parents will be ordered to pay child support according to their income.