Step-Parent Adoptions

Today, society embraces blended families. Heartwarming stories about adoption and the wonderful gift of having a child abound. Often, a new marriage following a divorce brings children into the equation.

If you are a new step-parent, you may be interested in the possibility of adopting your step-child. Adoption may create a closer bond with you and your step-child, as well as a more stable family unit. This process can become complicated and complex, but also very rewarding for both you and the child. As family attorneys, we frequently deal with step-parents’ interest in adoption and are happy to assist you in this process.

In Massachusetts, a step-parent may adopt a step-child. To begin this process, a step-parent may file a petition to adopt, as long as the child is the step-parent’s spouse’s child. If the child you are adopting is over 14 years old, you must also obtain his or her consent to confirm that the child would like to be adopted. Additionally, your spouse must have legal and physical custody of the child. Legal custody means that a parent makes important decisions on behalf of their child regarding education, religion, and medical decisions. Physical custody determines where a child’s primary residence is.

For an adoption petition, a child must be in physical custody of the step-parent and spouse-parent for at least six months before the petition is filed. Also, it is important to know that the biological parent without custody must relinquish any parental rights in order for the adoption to take place. In these situations, we encourage step-parents to assess their family dynamic, the biological parent’s involvement in the child’s life, and what would be in the best interest of the child. Please be aware that the Commonwealth encourages both biological parents to be in a child’s life. If this is occurring, then step-parent adoption may not be possible, as both biological parents have an active role.

However, a step-parent may be forced to take on the responsibility of a biological parent. There are many instances in which a child can suffer severe physical or emotional damage if they remain in connection with their biological parent. Physical abuse, emotional abuse, substance abuse, incarceration, and death are just some of the reasons why a step-parent may be put in a position to adopt a stepchild. It is important to be sensitive to the reasons why a biological parent is suddenly unfit to be part of their child’s life. While you may be a better suited parent, custody and adoption hearings can be very contentious. As there are many parties, each wanting different outcomes, our family law attorneys will help you navigate the adoption process. Also, we will assist in ensuring that any court orders or pre-existing agreements are terminated by the time an adoption takes place.

Once the petition is approved, the adoption process differs from a standard adoption. A standard adoption involves the Commonwealth’s analysis of whether you and your spouse would be fit parents. However, as it is likely your spouse is a fit parent, and it is their child, home studies and state intervention are not required.

Once you adopt your stepchild, you take on the legal and physical rights of becoming the child’s guardian. As a responsible parent, you take on the responsibility of financially and emotionally supporting your spouse’s child. With your spouse, you will have the ability to make decisions on a child’s education, medical care and religion. You will also have the opportunity to give your stepchild benefits, such as health insurance.

Additionally, the process changes the child’s birth certificate, replacing the absentee parent’s name with yours. Through this process, your stepchild will be able to inherit under your will. In this case, as you are now the guardian of this child, they can inherit through intestacy under a will, even though you are not biologically connected. Also, if you and your spouse divorce, you may be liable for child support and custody of your stepchild since you have taken financial responsibility of this child.

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

Absent Parents and Termination of Parental Rights: New Case Law

A judge may draw a negative inference from a parent’s absence and find that the parent is unfit, terminating parental rights, according to a recent decision of the Massachusetts Appeals Court.

In Adoption of Talik, the Court terminated parental rights of a mother failed to attend a trial regarding reunification with her child.  Adoption of Talik, 92 Mass. App. Ct. 367 (2017). The child, born in 2013, tested positive for narcotics at birth and was placed in the custody of the Department of Children and Families, then shortly after discharged to the care of his foster parents.

DCF drafted a service plan for the mother, with the goal of reunifying the mother and the child. Under that plan, the mother was to participate in substance abuse treatment, provide toxicology screens, and attend visits with her child, among other tasks. Due to a lack of attendance, the mother was discharged from the program.

Soon thereafter, DCF’s goal changed to that of adoption. A relative of the child who resided in California expressed interest in having the child placed with her, and California Child Protective Services conducted a placement study. The study concluded that the relative’s home did not meet the proper standards for placement as applied in Massachusetts, and the child remained with his foster parents. The mother sued, claiming that DCF abused its discretion, and seeking to have the child placed in the care of the relative.

During the trial, the mother’s attorney was present, but the mother was absent despite having had notice of the proceedings. The judge issued a decision terminating the mother’s parental rights and approving DCF’s plan to have the child adopted by his foster parents. On appeal, the mother argued an abuse of discretion by the trial judge.

The Appeals Court affirmed the trial judge’s decision. “[A]n adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt,” the Court stated. “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child’s best interests.” Id., at 371-372.

The Court further explained that the trial judge has discretion to determine whether to draw such an inference, considering whether such inference is fair and reasonable based on all applicable circumstances. In the present case, the Court noted, the judge did not abuse his discretion, given the mother’s history of substance abuse, long history of domestic violence, failure to continue treatment, and noncompliance with the service plan.

If you need more information about Massachusetts family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

Open Adoption Agreements and Enforceability: New Case Law

In a recent case, of interest to adoption attorneys and parties alike, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.

In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. As family law lawyers, it’s not uncommon to see substance abuse and mental health issues transcend from biological parents to adoptive children. This particular adoptive child had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.

The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.

Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2  This guidance is instructive to an adoption attorney considering the route of open adoption for his or her client.

In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.

In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.

At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare. Experienced adoption attorneys would clearly have an valid argument on either side of that issue.

The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.

The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3

The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.

“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”

If you have any questions about adoption or family law generally, our experienced family law attorneys are here to help. Call our office or schedule a free consultation today.

 

1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).

2 Id., at 4.

3 Id., at 8.

Is Parental Consent Needed in an Adoption Case?

Typically, written consent of certain parties is required before an adoption may take place; the requirements are set forth in Massachusetts General Laws, chapter 210, section 2. If the child being adopted is over the age of 12, consent by the child is needed. If the person being adopted is an adult who is married, consent of the person’s spouse is also needed.

In addition, written consent of the “lawful parents” must also be obtained before the adoption may go forward. If the child was born during a valid marriage, both biological parents must provide consent. If the child was born out of wedlock, only the consent of the mother is required; the father is entitled to notice of the adoption proceedings and may request custody, so long as he was adjudicated the father, or has filed a parental responsibility form with the Department of Children and Families.

According to the statute, the form of written consent must take the following shape:

I, as the (relationship) of (name of child), age , of the sex , born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).

I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED.

Under some circumstances, however, the courts may dispense with parental consent and allow an adoption to proceed without it. As with all issues dealing with custody, the court will use the “best interest of the child” standard: the court may dispense with parental consent only where it is in the best interests of the child to do so. According to Massachusetts General Laws, chapter 210, section 3, there are many statutory factors which the court will consider in determining parental fitness. Some of them include:

• Abandonment of the child;
• Severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
• Willful failure to visit the child where the child is not within the parent’s custody;
• A prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child
based on such prior pattern or assault; and many others.

In one important case, the Supreme Judicial Court considered whether the trial judge erred in holding that a mother was proven by clear and convincing evidence to be an unfit parent, dispensing with the requirement of parental consent in the adoption of her two children. “The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary’s long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, serious parental neglect, abuse and misconduct, made her an unfit parent,” the Court noted. “The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she ‘had made no progress in ways that would assist her in getting her children back.’”

If you have any questions about issues of divorce, custody, or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

 

[1] Mass. Gen. Laws, ch. 210, s. 2.

[2] Mass. Gen. Laws, ch. 210, s. 3.

[3] Adoption of Georgia, 433 Mass. 62 (2000).

[4] Id., at 66.

What’s in a (Child’s) Name? Massachusetts Law Regarding a Child’s Last Name

Typically, a child born into a valid marriage will receive the last name of the husband, who in Massachusetts is presumed to be the father of the child. There is, however, no law in place which requires the parents to give their child the father’s last name. In fact, if the parents who are co-parenting agree to a different last name for the child, they have the right to choose that last name according to an important decision by the Massachusetts Supreme Judicial Court. While this may not seem so exciting, we family law attorneys love this stuff!

In the 1977 case of Secretary of the Commonwealth v. City Clerk of Lowell, the Court considered several cases brought against city clerks who had refused to follow the opinion of the Attorney General regarding the recording and use of names, without respect to the desires of the people who filed their children’s birth certificates. The facts of the cases varied: in one case, an unmarried woman attempted to hyphenate her child’s last name, but the clerks changed it to her name; in another case, a married couple applied for a hyphenated last name for their child, based on both of their last names, but the clerks changed it to the father’s last name; and so on.

The Court noted that a long-standing legal custom allowed adults the freedom to choose and change their names. “We think the _ principle of freedom of choice in the matter of names extends to the name chosen by a married couple for their child,” the Court reasoned. “They may change their own names at will, and need not have the same surname. It seems to us to follow that they need not give their child the father’s surname, though of course they may.” The Court declined to address issues regarding illegitimate children, but established that married parents may decide to give their children a surname other than the father’s last name.

But what happens when the parents do not agree as to what the child’s last name should be—whether at birth, or later, after a separation which causes one parent to wish to change the child’s last name? When parents divorce, there are case in which the divorce lawyer must grapple with the potential change of a child’s name. That’s particularly true when one parent despises the other’s last name. When the parties are in a dispute about the child’s last name, the Court will use the “best interests of the child” standard to determine what the child’s name should be. As always, this standard takes into consideration many different factors: in this context, the factors include the effect of a name change on the child; the length of time the child has had his or her last name; the relationship the child has to each parent, as well as to his or her siblings; and any difficulties the child may experience in the event of a name change versus keeping the child’s surname the same.

In one case, the father of a child born out of wedlock petitioned to have his daughter’s last name changed from the mother’s surname to his own. The trial judge sided with the father and ordered the child to bear the paternal surname, but the appeals court disagreed. “In the circumstances presented here, we hold that there is no presumption favoring the father’s right to have his child bear his name solely because he provides financial support and recognizes the child as his own,” the Court noted; rather, the father had the burden on proving that changing the daughter’s last name was in her best interests, which he failed to do.

In another case, the mother of two children petitioned the court to change the children’s last name from the last name of their father (her former husband) to the last name of her new husband. The trial judge declined to do so, but the appeals court again disagreed, holding that the trial court based its decision on the consideration of factors that lacked firm foundation in evidence, and ignored contrary evidence.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and one of our experienced family law attorneys will get back to you at our earliest opportunity.