Securing the Nonparent's Place in a Child's Life Through Adoption and Adoption Alternatives - October 2008
| Publication year | 2008 |
| Pages | 27 |
2008, October, Pg. 27. Securing the Nonparent's Place in a Child's Life Through Adoption and Adoption Alternatives - October 2008
October 2008
Vol. 37, No. 10 [Page 27]
About the Author
This article provides an overview of various aspects of several statutes that can be relied on by nonparents to establish and secure an enforceable presence in a child's life. This includes an explanation of the extent of rights and responsibilities that can be formally ordered in each case.
In many situations, an adult who is not a child's biological parent may establish a relationship or connection with a child-for example, the child may live with the adult or be the child of the adult's spouse. Such a relationship may be vulnerable to disruption if the child's biological parents wish to interfere-for example, by removing the child from the home and eliminating contact, or by divorcing a child's stepparent and eliminating contact. The law provides certain avenues for some adults to establish formal and enforceable parent or parent-like relationships with a child, even when there is no biological parent-child relationship.
When an adult who is not the biological parent of a child wishes to legally secure his or her relationship with the child, that adult may seek a court order that formally defines the relationship and sets out the adult's legal rights and obligations to the child. If the adult wishes to become the child's legal parent, he or she may be able to pursue adoption or a paternity action. When circumstances preclude adoption or paternity, or if establishing a legally recognized parent-child relationship (equivalent to that relationship established when a child is born to an adult) is not desired, alternative methods of protecting the adult's relationship with the child may be considered. Among these options are allocation of parental rights and responsibilities (APR) actions and guardianship.
This article is not meant to be a comprehensive discussion of all types of adoptions, paternity actions, APR actions, or guardianship actions. Each of these actions is governed by extensive case law and statutory authority. Rather, this article provides an overview of small sections in each of these statutory frameworks that serve a specific purpose. Those small statutory pieces can provide avenues for adults who are not a child's biological parent, but have developed a connection to a child, to seek and secure an enforceable, legally recognized place in a child's life.
Adoption
CRS § 19-5-211 establishes that on entry of the final decree of adoption, the person adopted is:
to all intents and purposes, the child of the petitioner. He [or she] shall be entitled to all the rights and privileges and be subject to all the obligations of a child born in lawful wedlock to the petitioner.
Therefore, adoption results in the creation of a new parent-child relationship, which is equivalent to a biological parent-child relationship.(fn1)
When an adult has an existing relationship with a child, there are four types of adoption he or she may pursue. Each type is characterized by the existing connection between the adult and child. These types of adoptions are: (1) custodial adoptions; (2) kinship adoptions; (3) stepparent adoptions; and (4) second parent adoptions.(fn2)
Availability for Adoption
A child is available for adoption if: (1) the biological parents consent to the adoption; (2) the biological parents' parental rights are terminated by a court; or (3) the biological parents relinquish the parent-child relationship.(fn3)
An involuntary termination of the parent-child relationship requires a finding by the court that the child has been abandoned either emotionally or financially by one or both biological parents for at least one year.(fn4) Because the statute cites these as alternatives, practitioners need not establish both emotional and financial abandonment.(fn5) Case law establishes that, at least for stepparent adoptions, the year of abandonment must be immediately preceding the filing of the petition.(fn6)
Emotional abandonment. The applicable statues do not define "emotional abandonment" or establish objective criteria on which a finding of emotional abandonment should be based. Generally, emotional abandonment is evidenced by a parent's lack of contact with a child or, as one case suggests, a lack of appropriate attention to parental responsibilities.(fn7) In assessing whether a child has been abandoned, the court must look at the totality of the circumstances surrounding the abandonment, viewed in light of the best interests of the child.(fn8) The evidence must establish that the abandonment was intentional, determined not by what a parent says, but by what a parent has done.(fn9) Although case law is sparse on the matter of abandonment, one case establishes that a single contact in the year preceding the filing of the petition will not preclude a finding of abandonment.(fn10) Ultimately, this assessment should take into account the totality of the circumstances surrounding the emotional abandonment.(fn11)
Financial abandonment. Similar to emotional abandonment, financial abandonment does not require total financial abandonment; instead, it requires simply a parent's failure to provide reasonable financial support.(fn12) Providing some support, even if less than the court-ordered amount, may be sufficient for a determination that reasonable support has been provided.(fn13) Again, the case law is sparse and the inquiry fact intensive. In making this factual determination, the consideration should be based on the totality of the circumstances surrounding a parent's failure to provide support.(fn14)
Other considerations. The question of abandonment and, subsequently, adoption, must be considered in light of the child's best interests.(fn15) Therefore, in addition to presenting evidence on abandonment, the practitioner also should present evidence on, without limitation, family stability, the present and future effects of adoption, the child's emotional ties to and interaction...
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