Attorney, Cordell & Cordell
The decision to adopt a child give the child what you hope will be a stable, loving environment to grow up in is an honorable one. Couples rarely adopt children with plans to divorce. But as we know, divorce happens.
After an adoption has been finalized, a divorce does not affect the legal parental rights of the adoptive parents. The legal rights of the birth parents have been terminated and they no longer have decision-making abilities concerning the child.
The biological parents of an adopted child whose adopted parents are going through a divorce do not have standing to contest the divorce, the new custody arrangement, or to get the child back.
There is one caveat to the idea that the biological parents are completely cut off after the adoption, though.
If the biological parents gave consent to the adoption with the understanding that the child would be going into a two-parent home, but the adoptive parents were planning a divorce during the adoption process and did not disclose this to the biological parents, the biological parents have a basis to argue that their consent to the adoption was not informed.
The biological parents can argue that the adoptive parents perpetrated a fraud upon the biological parents and the court by not disclosing their plans to divorce during the adoption process. The consent of the biological parents can be deemed voidable or revoked, and if in the best interests of the child, the child can be returned to them.
Adopted children in a divorce will be treated the same way biological children are treated. Courts will decide issues of custody, support and parenting time in accordance with what they believe is in the best interests of the child.
If an adopted child receives a governmental adoption subsidy (funds to help the child and their new family), the subsidy will not affect the adoptive parents obligation to pay child support.
Federal adoption subsidies are designed to offset some of the costs associated with a special needs child. A child’s disability, and the funds they receive for it, has nothing to do with the adoptive parents’ income or ability to support the child. Most states will not consider those funds when issuing a child support order.
Special care should be taken with adopted children during the divorce process. Adopted children have, by definition, suffered a previous loss. Special attention should be paid to their emotional needs during the divorce process. Family or individual counseling may be necessary to ensure that the child is not negatively affected throughout the process.
Adopted children are more likely to feel abandoned or at fault for the divorce than the biological children of the marriage. Parents of adopted children may also take classes or have counseling regarding how to work together to parent the child after the divorce and to minimize the impact of their actions on the child.
Read related article: Divorce During Adoption
Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.