Stepparent Adoption Laws and Procedures in California

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. There is no legally mandated minimum period of residence within the county required.

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. (For most adoption agencies, this order must only be a court-conformed copy, not a certified copy. 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 for the step parent investigation?

Yes. Each county has a different fee and you must file in the county in which you live. Most counties charge the maximum allowed by law: $700. But some counties charge less. Each county also has a different designated entity to do the step parent investigations for the county. It might be the county adoption agency (most common), an assigned court person, or the probation department.

There is a great recent law change, however, effective January 1, 2017 that allows you to not use the usual county's assigned entity (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). Private agencies are also limited to the same $700 maximum fee as the county entity.

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.

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 95% of stepparent adoptions, the absent parent is the birth father, and although 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 an attorney must often deal with, 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 here.

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.

Alleged Fathers.

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, sometimes his rights can be terminated with legal documents and not require a court hearing, which saves money. If the alleged father can't be found to be given 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 your attorney, who then produces a list of possible phone numbers, mailing addresses and emails. Your attorney then needs to show the court he or she followed all these leads and was still unable to find the absent birth father.

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 normally 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 a court appearance.

Presumed Fathers.

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 will be several thousand dollars in extra legal fees at least as it is a significant legal procedure. If the birth father 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 adds more legal fees. Some attorneys will agree to do the above actions on a flat fee so you know the additional legal fees in advance and they might be less than you imagine. Other attorneys will only charge hourly.

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?

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.)

What are typical costs for a step parent adoption, including legal fees? And how do we choose a stepparent adoption attorney?

While costs for stepparent adoption vary little (the investigation, fingerprinting, et cetera), legal fees can vary tremendously. There are many things you can do to select the right attorney for your case. You are welcome to read our review of typical costs and legal fees, and tips on selecting an attorney.

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?

Thanks to the legal change allowing us to use private adoption agencies (which few attorneys seem to know about), which are almost always faster than county agencies, the investigation can be completed quickly. The real waiting time is how long the government will take to process the adopting step parent's fingerprints. This can add several months. Considering that delay, many private agencies will complete their investigation in 3-4 months. Then there is a way of about 3-12 weeks for the court to set the final hearing date after receipt of the report from the agency. This varies county to county.

If the absent parent is not available to sign a consent, then extra time will be needed for that court action and will delay the final hearing. Luckily, the majority of stepparent adoptions have consenting birth 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. Learn about typical attorney fees and suggestions on choosing an attorney here.

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.

♦     ♦     ♦     ♦     ♦

To learn about me and my Senior Counsel, you may do so here. You can learn about our simple flat-fee and free consultations here.