Terminating parental rights of the absent parent in a stepparent adoption under Family Code section 8604(b)

When doing a stepparent adoption, unfortunately, not every absent parent is willing to consent to the adoption. If the absent parent is a “presumed” father, or the mother of the minor, the traditional statutory action to terminate their parental rights is a Petition for Freedom from Parental Custody and Control pursuant to Family Code section 7822.

What many attorneys – and their clients – don’t know, however, is that this section is not the only section one may use to seek to terminate parental rights. An alternative section is Family Code section 8604(c).

Section 7822(a)(3) sets a legal elements to terminate the parental rights of the absent parent in a stepparent adoption: 1) For at least a one year period; 2) the absent parent has failed to communicate; 3) or financially support, the child; 4) with the intent to abandon the child. Note that only lack of communication OR support is required, not both, as the statute says “or” not “and.”

Section 8604(b) is similar. Its elements to terminate the parental rights of the absent parent in a stepparent adoption: 1) For at least a one year period; 2) the absent parent has failed to communicate; 3) AND financially support, the child. Note there are two critical differences. One the one hand, the legal burden is more difficult for the adopting parent as he/she must prove the absent parent failed to communicate AND to provide support. However, there is no requirement to prove the intent to abandon.

These distinctions are legal “terms of art” and difficult for a non-attorney to understand. There are other differences as well between the two statutes, too complicated to discuss to a non-legal audience. What is important, however, is that you and your attorney look at both sections apply and plead the one most advantageous to your case. In some cases, an attorney may elect to file both causes of action.

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