Step Parent Adoption - California Laws and Procedures
Hello, I'm Randall Hicks, and I'm a step parent adoption attorney. Welcome to my detailed Q & A page about step parent adoption laws and procedures in California. If you have found this page through internet research and skipped the basic pages on this website about stepparent adoption in your county, I recommend you start there, as they are much shorter pages, but will answer all the initial questions prospective stepparents have. Please use these links: San Diego, Riverside, Orange, San Bernardino.
But for those who have already been there and wish even more detailed information about the laws and procedures regarding adopting their stepchild, then this page is for you (although some of the basic information provided on the San Diego, Riverside, Orange and San Bernardino County pages is repeated here).
What county do we adopt in?
Generally, you can only adopt in the county in which the adopting stepparent lives. Some counties have multiple regional courts, and if that is the case, you must usually file your Adoption Request, and set your final hearing, in that courthouse.
Do we have to live in the county for a particular time before we can file our Adoption Request with the court?
No. It is only required that you are actual residents. The only time length of residence is an issue is under what is called the UCCJEA (Uniform Child Custody Jurisdictional Enforcement Act) which becomes an issue when you have a prior case regarding the child's custody/visitation in another state (likely where you used to live), and you have now moved to California. This typically only becomes an issue if the adoption is contested by the absent parent.
Do we have to be married a certain time before we file our Adoption Request?
California law does not require a minimum time period, so the answer is "no." Some counties "recommend" a minimum period of time to be married, or cohabiting, such as one year, but these appear to be unenforceable and are only suggestions. The issue might arise if you use the county entity to do your stepparent investigation, but should not be an issue if you elect to use a private agency.
Why is there an investigation (often called a home study) before the step parent adoption is approved? What does it consist of?
The county and state want to make sure the child's best interests are served by the stepparent adoption being granted and creating a new parent-child relationship. It is extremely rare for a stepparent adoption to be denied. There will be a criminal history check of the adopting parent via fingerprinting.
There are some documents you will be asked for during the short investigation: certified copy of the child's birth certificate; certified copy of your marriage license; certified copy of the adopting parent's birth certificate; and if either spouse has a prior marriage, then a copy of the dissolution order. (This order must only be a court-conformed copy, not a certified copy, when working with the agency I recommend, but some other investigating entities might require a certified copy.)
Is there an investigation of the spouse of the adopting parent (the biological parent of the child who is retaining their parental rights)?
No. The existing parent is not required to go through the fingerprinting process, et cetera.
Is there a fee by the county for the investigation?
Yes. Each county has a different fee and you must file in the county in which you live. The investigation is not included in the $2,500 legal services flat fee. Here are the fees for each local county:
- Riverside County $344
- San Bernardino County $700
- San Diego County $270
- Orange County $700
- Los Angeles County $700
There is a great new law effective January 1, 2017 that allows you to not use the usual county's governmental investigator (usually slow and cumbersome) and instead select a private adoption agency or licensed social worker to do the investigation (which is much more streamlined and faster). This law was written by the Academic of California Adoption Lawyers, of which I am a member.
Most private agencies and social workers charge $700 regardless of the county in which you live. Learn more about this new law below (at "How long does it take to complete a stepparent adoption?")
What if the adopting parent had a criminal problem, like a DUI several years ago?
It is very rare for such an occurance to deny a stepparent adoption, unless it was for a serious issue. People are not expected to have never made a misstep in life. Usually, if someone has made a past mistake, such as a DUI, the question will be "did he or she learn from their mistake and have taken steps not to repeat it?" However, if the issue was one related to their character and child-caring abilities, such as child abuse, spousal abuse, et cetera, then yes, it could result in a recommondation to not grant the adoption. In 36 years of doing step-parent adoptions I have never seen one be denied (perhaps because people with a questionable past exclude themselves and simply don't start the process).
What about if the adopting step parent had a bankruptcy?
Bankruptcy is not a bar to adopting your stepchild. The investigator will simply want to make sure it is evident that the adopting parent and their spouse (the existing parent) can adequately meet the child's needs and are now properly managing their resources. The overall concern is the child's best interests and security.
Do we need the absent parent's consent?
Yes. There is a specific Consent to Adoption form. It must be authenticated in a specific way (notarization is the most common method). I prepare this form, contact the absent parent about it, send it to him/her with a check for a notary public (a standard notary is part of my flat fee and not an extra charge for you), file it with the court, then give a copy to the assigned stepparent adoption investigator.
What if the absent parent can't be found, or declines to sign a consent?
In about 98% of stepparent adoptions, the absent parent is the birth father, and although I find that the majority of birth fathers willingly sign a consent, it is not unusual when one can't be found, or is not cooperative in signing a consent. (Oftentimes these men don't wish to actually object, they are just not willing to take the time to cooperate.) Unfindable or uncooperative birth fathers are something I deal with often, and oftentimes the problem can be resolved without excessive cost. Be aware as you read this section that the subject of birth fathers' rights under California law is complex and there is more to the subject than can be covered below.
Let's assume the absent parent is the birth father. There are two categories of birth fathers under California law: alleged and presumed. Their legal status is determined by their relationship with the mother and/or child.
Speaking generally, if the birth father was never married to the mother, is not named on the child's birth certificate, has never had the child in his home, or does not have a paternity judgment, he is considered an alleged father. Technically, his written consent is not required, but the court will require proof that proper notice of the step parent adoption was served upon him.
If the alleged father can be found and served notice of paternity, but elects not to consent (yet is not actually objecting in court) the legal fee to terminate his rights is usually only $1,850 and does not require your appearance in court. If the alleged father can't be found to give personally served notice of paternity, the court has specific requirements about trying to find him to give notice ("a due diligence search"). This initial data base search is normally done by a neutral third party hired by Randy, who then produces a list of possible phone numbers, mailing addresses and emails. Randy then needs to show the court he followed all these leads and was still unable to find the absent birth father. The time for this extensive search and court filings demonstrating that it was done is usually about $800, then there is the same action mentioned above for $1,850 for the actual termination of parental rights petition and supporting paperwork and declarations. These fees are in addition to the $2,500 flat fee.
However, if the birth father goes to court to fight, the legal fees would be significantly higher as a trial would be required. The court would examine his past behavior regarding if he acted promptly and responsibly in meeting the needs of the child and mother. If he did act responsibly then the court can only terminate his rights if he is found to be unfit. However, if the birth father did not act promptly and responsibly, then the court can rule against him simply by applying a "best interests of the child" standard.
To repeat, however, this hearing is only required if the alleged father is actively objecting. If he can't be found, or is found but declines to consent, there is a legal process to terminate his rights that does not require your court appearance (and as stated above, is usually only $1,850 and possibly the $800 search fee).
The law is different for presumed fathers, who have stronger rights. A father is usually considered presumed if he was married to the mother, is named on the birth certificate, ever had the child in his home, or has a paternity determination by a court. The most common way to terminate the rights of a presumed father, if he refuses to consent, is to bring a Freedom from Parental Custody and Control action against him. The most common ground used is called "abandonment." The abandonment (typically showing no contact with, or support for, the child, for at least one year, showing an intent to "abandon". A Freedom from Custody action is more complicated, therefore more expensive in legal fees, than when dealing with an alleged father.
When the absent parent is the mother, then her rights are basically the same as a presumed father, and usually a Petition for Freedom from Parental Custody and Control based upon abandonment is required if she will not consent. Termination of parental rights is a complicated subject so the above information is a basic summary and does not cover every possible scenario. If needed, this is an area I discuss in greater detail during my initial consultation with you. The normal legal fee to prepare the Freedom Petition, Citation (like a summons on the absent parent), trial brief, proposed Order for the judge to sign, and the actual court appearance to take your testimony confirming the absent parent's lack of contact or support is a flat fee of $3,800. If he can't be found to serve, a more detailed search process is required than that for alleged fathers, and notice must be given by newspaper publication (in the legal section in the back normally). This involves substantial extra work and legal pleadings and usually adds about $1,800 in costs. This is in addition to the normal flat fee for doing the uncontested aspects of the stepparent adoption of $2,500.
If the birth father does not object, you normally win by default at this stage and the Freedom Petition is granted and the adoption can proceed. If, however, the absent parent objects, then the court will set a future trial date and more legal fees will be involved.
What legal documents are required by the court?
The process starts by me preparing and filing the Adoption Request, with the required two ICWA attachments (see below), then serving those documents on the investigator. I then try to contact the absent parent to sign his/her Consent to Adoption, then file the consent with the court (or if not obtainable, then an action to terminate parental rights). When the file is complete I file a Memorandum to Set to request a finalization hearing date. I also prepare and file with the court the Adoption Agreement (signed at the final hearing by the adopting parent, his/her spouse, the child if aged 12 or older, and the judge), as well as the Adoption Order (signed by the judge), and the form which will generate a new amended birth certificate for the child.
What is the Indian Child Welfare Act (ICWA)?
The ICWA is both a California and federal law which states that if the child is a member, or eligible for membership, in a Native American or Eskimo tribe, special rules and laws apply when the child is to be adopted. The adoption becomes much more complicated. The tribe at issue must be given notice of the planned adoption, and has the right to object. For example, if we are seeking to terminate the rights of an absent parent, John Jones, and he does not want to agree to the adoption, he may seek the support of his tribe to object to the adoption. The subject is too complicated to explain here in a short Q and A, but fortunately, it is not applicable in most adoptions. (Many people have a tiny bit of Indian blood, but it is often not enough to be eligible for tribal membership, thus normally making the ICWA a non-issue after tribal inquiry. Still an inquiry must be made if you know of any Indian heritage.) In the rare instances when it does apply, however, it is a significant legal issue and can make a stepparent adoption much more difficult and expensive to complete.
Do we give up future child support after the adoption that the absent parent has been paying in the past?
Yes, the absent parent's obligation for future child support ends when the adoption is granted. This is one reason why the majority of absent birth fathers agree to sign a Consent to Adoption. If the absent parent is past due on child support, the granting of the step parent adoption does not normally forgive that past-due debt, however, unless a rare special agreement is made and approved. The absent parent's consent to adoption can't be "bought," however, with a waiver of past due child support, as doing so is actually illegal. Any waiver of past due child support must be for other reasons.
Do we have to appear in court when the adoption is granted?
Yes. The adopting parent, their spouse (the child's biological parent) and the child must normally appear at the finalization hearing (unless military duty makes it impossible, then there can be an exception, or the adoptive parents have moved away during the step-parent adoption). The absent parent whose rights have been severed by this point in time does not appear, of course, and is not even given notice of the hearing. The finalization hearing usually occurs about 2 months after the investigation report has been filed approving the adoption.
You can bring guests to the final hearing. It is very casual proceeding, more like a celebration, so much so that cameras are even permitted in court to commemorate the day. It is so casual that many judges invite the family to come up where he sits on his or her bench for a formal photo.
Does the child have to consent to the adoption?
If the child is 11 or under, then no, his or her written consent is not required, although the investigator includes the child in part of her discussion with you about your planned stepparent adoption. (If you are concerned about your child hearing about a particular issue, you can discuss that with the investigator in advance to see if she can modify her comments/questions. I find the private agency social workers to be very sensitive to such matters and anxious to help make your step parent adoption a smooth and happy process.)
If the child is age 12 or older, the child must sign a consent to the adoption in the finalization court hearing. (Usually the ceremony of this signing is quite touching and means a great deal to a child.)
Do we get a new birth certificate for the child changing their name? Does this cost extra?
Yes, you get one, and no, there is no extra fee. The amended birth certificate will also list the adopting parent as the birth parent, replacing the absent parent, and you can change the child's name (usually if the adoptive parent is the father the child's last name is changed to match his, but this is for each family to decide).
If your child was born in California, the new birth certificate will be prepared by the California Vital Records office. If your child was born in another state, the paperwork regarding the need for an amended birth certificate will be forwarded by California Vital Records to the actual state of birth.
How does a stepparent adoption affect the rights of the existing custodial parent? For example, if Mary is the mother of the child and her new husband, Steve, is adopting the child, are Mary's rights affected?
No, the spouse who is the biological parent (Mary in the above example) does not lose her parental rights.
What obligations is the adopting parent incurring?
In adopting the child, the adopting parent is agreeing to assume the same obligations he or she would incur as if the child was born to him or her. This includes the obligations to provide for the child's needs, and the right of inheritance if the parent were to die without a will making specific provisions to the contrary.
Does the Federal Adoption Tax Credit apply to stepparent adoptions?
No. Unfortunately, the Federal Adoption Tax Credit does not apply to step-parent adoptions. The credit was created to encourage adoption for a child who does not have any parent, and this situation does not apply in step parent adoption.
How long does it take to complete a stepparent adoption?
I don't think any attorney in California completes stepparent adoptions faster than I do. I usually have your Adoption Request prepared and ready for you to sign within five business days of receiving your signed retainer. I email all documents for you to sign and return to save time (unless you prefer them by snail mail). Thanks to the new law allowing us to use private adoption agencies (which few attorney seem to know about) most of my stepparent adoptions are finalized within about 3-5 months of filing the Adoption Request. Each county varies. Compare this to most attorneys working with the county investigator, where the average is 12-18 months.
If the absent parent is not available to sign a consent, then extra time will be needed for that court action, but luckily, the majority of stepparent adoptions I handle have consenting parents.
Do we have to use an attorney to do a stepparent adoption?
Technically, no. You can file on your own, called "in pro per." Some people have successfully completed their step-parent adoption without an attorney when there were no particular legal obstacles to overcome. However, even in uncontested adoptions, there are a lot of important legal issues involved. Dealing with the absent father to obtain his consent can be an emotionally tricky process for both of you, and a good adoption attorney is experienced at explaining the benefits to him of signing the consent.
Just one trip to the courthouse, waiting in line to file a document, and getting turned away because it was not done correctly, even assuming you found the right forms and completed them correctly, is usually all it takes to demonstrate how complicated and frustrating the court system can be for non-attorneys. Since the formation of your family is so important, and a stepparent adoption can cost as little as about $2,500 for an experienced adoption attorney, many families elect to use an attorney.
How do we select an adoption attorney?
It is recommended to find an actual adoption attorney, as adoptions are uniquely different from general family law cases, which is primarily divorce and child custody. Completely different Family Code statutes cover step parent adoptions than divorce-related matters. You can also check with the California State Bar (calbar.org) to learn how long the attorney has been practicing law and if there have been any disciplinary proceedings against him or her.
What are Randy's fees to do a stepparent adoption?
I charge a flat fee of just $2,500 for an uncontested stepparent adoption. (Uncontested means the absent parent signs a Consent to Adoption, and there are no complications like the Indian Child Welfare Act.) The majority of my cases are handled for just the $2,500 flat fee. Because it's a flat fee you know what you will pay, rather than being charged hourly where estimated fees may greatly exceed what you were told. The flat fee also includes the court filing fee, and my office costs, so $2,500 is the full total, covering everything from preparing and filing the Adoption Request to appearing with you in court for the final hearing. You pay your stepparent investigation fee.
If the absent father is in the alleged category and can't be found, or is found but declines to consent, a termination of his rights can usually be done for a flat fee of only $1,850 (plus about $800 if you don't know his whereabouts and a detailed search must be done and its completion detailed to the court). However, if he is actively objecting, such as by filing a Complaint to Establish Paternity, then higher legal fees will result as a trial will likely be required). If the father is presumed then the cost will be higher (usually $3,800 through the default stage), and additional costs if he can't be found to serve notice.
How much is a consultation with Randy?
A basic consultation is free and usually takes about 30-40 minutes. I ask that both husband and wife be present, whether we are doing it by phone or in person. If I determines your case is a complicated and contested one, then we will need to meet in person, schedule more time, and I will need to charge you for the consultation. Most stepparent adoptions, however, can be done with a free 30 minute consultation, which completely covers all needed issues.
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In conclusion . . . I don't know anywhere else you can find the above detailed information about stepparent adoption laws and procedures in California. I hope it has been helpful. If you know someone interested in stepparent adoption who would benefit from the information, you are welcome to use the buttons below to share this page.
But be aware, this website is not legal advice. Also be aware that not every law potentially applicable to your stepparent adoption is mentioned here, and that laws can change or be interpreted differently, so your use of this website acknowledges and agrees to the fact you use this website and webpage with no liability by Randall Hicks / Stepparent Adoption Center. You will need to retain an attorney and discuss the particular facts of your case to get reliable information regarding how to proceed with your stepparent adoption.
*Since I wrote the above information, I have "shrunk" my law practice and I no longer take stepparent adoption cases. (I only do adult adoption - the adoption of adoptees 18+.) As you will read on the informational page of the county where you live (Los Angeles, Orange, San Diego, Riverside or San Bernardino), I now send all stepparent adoption inquiries to my friend and fellow adoption attorney, Allen Hall, who has agreed to maintain the flat fee structure and principles of the Stepparent Adoption Center that have made it so popular. So when you complete the Stepparent Adoption Questionnaire to schedule a consultation, it goes straight to Allen and I have no role in the case. This allows both you and Allen to benefit from this long-standing website and its information and streamlined starting process.