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Adoption

I’m a Step Parent, Can I Win Custody of My Step Child?

Monday, December 30th, 2013

The short answer to this question is: maybe, depending on your relationship with your step child. If you have legally adopted your step child, under the law, you are considered as the child’s legal parent. See O.C.G.A. §19-8-6(a)(2) and O.C.G.A. §19-8-6(a)(1). As a legal parent of your step child, (via step parent adoption) you have the same rights to child custody as the child’s other legal parent (your current or soon to be ex-spouse). This is so, because upon adoption of a child, the legal relationship between the child and the biological parent who consents to the adoption is terminated. Thus, the child is no longer viewed as the legal child of the consenting parent, but as the legal child of the adopting parent. Please note, that as with any other child custody contest between parents, the judge presiding over the matter will determine the child’s custodial arrangement with the best interests of the child in mind, and will only make a custody award that suites the  child’s best interests.

However, if you are a step parent who has not yet legally adopted your step child via the process of step parent adoption, you are not viewed, legally, as the legal parent of your step-child. Thus, under normal circumstances, a court will likely not award custody to you as opposed to the child’s legal and biological parent. If you are considering step parent adoption, there are two ways in which a child may be adopted by his or her step parent. If the child’s other biological parent is no longer living, the child may be adopted by the spouse of his or her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). On the other hand, if both the child’s biological parents are still living, a child may be adopted by his or her step parent only if the other parent voluntarily surrenders his or her parental rights in writing and the other parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1).

Georgia Step Parent Adoption

Friday, January 11th, 2013

In Georgia, blended families are becoming more and more prevalent. As a result, many Georgia couples wonder: “May I adopt my step children? If so, how?” These couples will be glad to know that inGeorgia, one spouse may indeed adopt the child of his or her spouse. This process is commonly referred to as step parent adoption.

There are two different circumstances under which a child may be adopted by his or her step parent, and the process that the adopting parent must undergo differs according to these circumstances.If the child’s other biological parent is no longer living, the child may be adopted by the spouse of his or her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). For example, if the step father wishes to adopt his step child, and the child’sbiological father is no longer living, the step father may adopt the child if the mother (the step father’s wife) gives consent.

However, in cases where both of the child’s biological parents are still living, the requirements for step parent adoption are different. If both of the child’s biological parents are stillliving, but they are not married to each other, the child may be adopted by his or her step parent only if the other parent voluntarily surrenders his or her parental rights in writing and theother parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1). An example of this situationwould be as follows: If a step mother wishes to adopt her step child, and the child’s biological mother is still living, the biological mother must voluntarily surrender her parental rights inwriting, and the child’s father (the step mother’s husband) must give consent. If the biological parent refuses to surrender his or her parental rights, the court presiding over the matter willhold a hearing to determine whether the adoption is in the best interests of the child.

One additional requirement that applies to either situation is that if the child involved is fourteen years old or over, that child must also consent to the adoption in writing. O.C.G.A. §19-8-6(b).

If you are a step parent, and you wish to adopt your step child, it will be necessary for you to file a Petition for Stepparent Adoption in order to begin the process. In order to ensure thatyour petition is effective, and that you are ultimately successful, we advise you to seek the help of an experienced Georgia family law attorney.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Grandparent visitation denied by Georgia Court of Appeals

Friday, February 25th, 2011

The Georgia Court of Appeals recently denied paternal grandparent visitation where the biological father had given up his parental rights. In Bailey v. Kunz, the mother was married to and had a child with the biological father. Bailey v. Kunz, A10A1809 (2011). After the biological parents divorced, the mother remarried, the biological father surrendered his parental rights, and the mother’s new husband (“adoptive father” and, with the mother, “parents”) adopted the child. Id. A dispute arose between the parents of the child (the mother and the adoptive father)and the parents of the biological father (“biological grandparents”) over visitation with the child. The parents moved to dismiss the biological grandparents’ petition for visitation “arguing that such a petition was not authorized because [they] were the legal parents and lived together with the child.” Id. After the trial court denied the petition, the parents appealed and the Georgia Court of Appeals reversed the trial court’s denial of the motion to dismiss.

The statute governing grandparent visitation states: “Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . .or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19.This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b).

According to the Georgia Court of Appeals, the adoptive father is a “parent” for purposes of the grandparent visitation statute because, in the adoption statute, a “parent” includes the legal father of the child. Id. at 4. It would be inconsistent to treat him as a parent in one statute but not in another. Applying this logic in this case, the parents of the minor child are not separated and the child is living with both parents, making the petition for grandparent visitation unauthorized.

Stepparent Adoption in Georgia

Wednesday, December 10th, 2008

A child may be adopted by the spouse of his/her parent in Georgia regardless of whether the child’s other parent is still living, but there are different requirements for each situation. If thechild has only one legal parent still living, the child may be adopted by the spouse of his/her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). Ifboth of the child’s legal parents are living, but not married to each other, the child may be adopted by the spouse of either parent only if the other parent voluntarily surrenders his/herparental rights in writing and the other parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1). In either situation, a child fourteen years of age or older must consent in writing tohis or her adoption. O.C.G.A. §19-8-6(b).

If the party whose rights the stepparent seeks to terminate refuses to surrender his/her rights, the Court will hold a hearing to determine whether the adoption is in the best interests of thechild. If that parent cannot be found, the stepparent must exercise due diligence to try to locate the parent to provide him/her with sufficient notice under Georgia law. The biological/legalparent must receive adequate notice of the proceedings before the Court will grant the adoption and, in our experience as divorce attorneys in Atlanta, the Courts are very strict on this issue.

Before a stepparent adoption can be finalized, the stepparent must undergo a criminal background check through the Georgia Crime Information Center. The Department of Human Resources, or otherrepresentative appointed by the Court, will also become involved to verify the allegations in the Petition for Stepparent Adoption. This representative routinely interviews the stepparent andparent and may even visit the home where the child is living.

Adult Adoption in Georgia

Sunday, July 1st, 2007

When you think of adoption, you likely think of a couple adopting a newborn baby or young child who has been abandoned by his/her parents, or possibly a stepparent adopting a stepchild. Did youknow adults could be adopted in certain circumstances as well? In Georgia, there is actually a statute that covers the issue of adult adoption. According to OCGA §19-8-21, “[a]dult persons may be adopted on giving written consent to the adoption…After examining eachpetitioner and the adult sought to be adopted, the court, if satisfied that there is no reason why the adoption should not be granted, shall enter a decree of adoption and, if requested, shallchange the name of the adopted adult. Thereafter, the relation between each petitioner and the adopted adult shall be, as to their legal rights and liabilities, the relation of parent and child.”Thus, the end result is no different than adopting a child.

This issue recently came up in a Florida case. According to an article in the Daily News, a Florida man with two biological children filed paperwork to legally adopt his 42 year old girlfriend,which would entitle her to a third of the assets in a trust fund set up for his children. Gross!Man legally adopts 42-yead old girlfriend, by Nina Mandell, NYDailyNews.com, February 1, 2012. Not coincidentally, this man is being sued by the parents of a young man killed in a car crash,and these parents, as well as the judge, believe that he has filed the adoption paperwork to shield his assets from a possible judgment against him.

If this case were in Georgia, the court would look closely at the allegation that the petitioner was merely seeking to shield assets in making its decision to grant the adoption. If proven, this would likely be a reason the adoption should not be granted under the statute, particularly if there was no valid reason for the adoption in the first place.

Grandparent visitation rights in Georgia

Thursday, February 1st, 2007

The Supreme Court of Georgia recently heard an interesting case regarding visitation rights for grandparents whose son’s parental rights had been terminated. Kunz v. Bailey, S11G0867(2012). In that case, the child’s stepfather adopted the child after the biological father’s rights were terminated. Id. After being denied access to the child, the paternal grandparents(parents of the biological father whose rights were terminated), petitioned for visitation rights with the child. Id. Under Georgia law, a petition for grandparent visitation is not authorized where “the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b). Therefore, the child’s mother and adoptive father(“Parents”) moved to dismiss the action and, after the motion was denied, filed a direct appeal to the Court of Appeals of Georgia. Id. at 2. The Court of Appeals reversed the trial court’s denial of the Parents’ motion to dismiss, determining that the term “parent” in the grandparent visitation statute “was not limited to natural parents, but included adoptive parents as well.” Id.

The grandparents then filed a petition for certiorari with the Supreme Court of Georgia to determine whether the language of the grandparent visitation statute cited above includes adoptive parents. Id. at 3. The Supreme Court of Georgia held that the statute did include adoptive parents. Any other interpretation would “allow grandparents, by court action, to intrude upon the ‘constitutionally protected interest of parents to raise their children.’” Id. at 4, quoting Brooks v. Parkerson, 265 Ga. 189, 191 (1995). In addition, there was no limiting language in the statute that distinguished between any class of parents. Kunz, at 4.

The Court also agreed that the trial court’s denial of the original motion to dismiss was error. Since the adoptive father was the father of the child at the time the grandparent visitation was filed and the child was living with both parents, there was no basis for an original action for visitation by the grandparents. Id. at 5. Thus, dismissal of the grandparents’ visitation petition “was the proper outcome.” Id.