Attorney, Cordell & Cordell
Divorce during adoption does not have to end the adoption, but it can be an obstacle that needs careful planning and handling.
There are several types of adoption, and how a divorce effects the adoption will depend on the rights of the biological parents and the decision of the court that approves the adoption.
Consensual adoptions occur when the birth parents voluntarily relinquish their parental rights and agree to give their child to the adoptive parents. Consensual adoptions can be arranged through an adoption agency, a family relationship, or privately.
If the consent of the biological parents was based upon the idea that their child would be going to a married, two-parent home, the biological parents may have the right to revoke their consent to the adoption if a divorce occurs or is in process before the adoption is finalized.
Adoptions can also occur out of the foster care system. Usually in a foster care adoption, the rights of the child’s biological parents have been terminated or will be terminated. After their rights have been terminated by the state, the biological parents have no legal ground to contest an adoption.
During a foster care adoption the court that is approving the adoption will have the final say regarding how a divorce will impact the adoption. The court must consider what is in the best interests of the child and may allow the adoption to take place, allow one parent to adopt the child, or terminate the adoption completely.
Stepparent adoptions are common. Many stepparents wish to adopt the children of their new spouse. Stepparent adoption is normally an expedited process if the other biological parent consents or has no legal rights to the children.
If a divorce occurs between the biological parent and the stepparent hoping to adopt during the adoption process it is likely the court will not approve the adoption. All states require that the stepparent be married to the biological parent for a stepparent adoption to take place.
How divorce affects international adoptions will depend on the laws of the country the child is being adopted from. Many countries will not adopt children to single parents and may cancel a pending adoption if a divorce is filed. Some countries will not adopt to parents who have had previous divorces.
A pending divorce during an adoption has the potential to derail the entire adoption process. However, divorce during adoption can create an entirely new arrangement for the adoptive child, like in the case of Sandra Bullock and Jesse James.
Bullock and James were in the process of adopting a baby boy when months into the process Bullock found out that James was cheating on her, and they decided to end their marriage. Instead of cutting off ties with the baby, Bullock decided to request a single parent adoption and raise the child as a single mother; a happy ending to a sad story.
An experienced adoption attorney can guide you through the legal requirements of adoption and help prepare and present a new adoption plan to a judge during a divorce.
Read related article: Divorce After 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.