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Ask An Attorney

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I have a 6-year-old daughter from a previous relationship. Her dad has had no involvement in her life whatsoever for the past four years. I have been married to my current husband for almost three years, and my daughter has only really ever known my current husband as her dad. My current husband wants to adopt her, and I think my daughter's biological dad would consent to terminating his rights so this can be done. I want to know how we can accomplish this, and what would happen if her biological dad wouldn't agree to terminate his rights?

"Essentially we have two questions here. The first being, if the dad would agree to terminate his rights, how would step dad adopt the child."

How would they do this?

"If the biological dad agrees to terminate his rights, he will need to sign a consent acknowledging that he understands he is terminating his parental rights, and that he agrees that step dad can adopt the child. A verified petition would also need to be executed by the mom and step dad asserting that it is their intent that step dad adopts the child, and subsequently that he will have all rights and responsibilities as her biological father. Once those documents are executed, they are filed with the court, and a hearing date is set."

And the hearing is where the adoption will be made official?

"Yes. Before that, however, notice of the hearing should be sent to the biological dad and also the Department of Human Services."

Why is the Department of Human Services involved?

"It is required that they be notified of all adoptions in North Dakota, no matter if it's an agency or stepparent adoption."

So back to the hearing, what happens there?

"If the biological dad signed a consent, they are fairly short hearings. The step dad will likely briefly testify and assert that he understands he is adopting the child, and will be her father for all intents and purposes, including being financially responsible for her, and for inheritance purposes. Once he testifies, if the court determines that the required consents have been obtained, and that the adoption is in the best interest of the child, the judge will likely sign the decree of adoption right at the hearing."

What would happen if the biological dad refused to sign the consent, or if he couldn't be found?

"Which is the second question that the mom asked. At that point, mom would need to move to terminate the biological dad's parental rights. Before a child can be adopted, the biological parent's parental rights must be severed."

What would be required for the Court to terminate his rights?

"The Revised Uniform Adoption Act actually provides for specific circumstances where termination may be appropriate. For example, when a parent has deserted a child without affording means of identification, or when a parent has abandoned a child. Termination may also be appropriate where a parent has failed to communicate with the child, or to provide for the care and support of the child as required by law or judicial decree without justifiable cause for at least one year. The court can also terminate the biological dads rights if they find he is unreasonably withholding his consent, contrary to what is in the best interests of the child."

I assume there would be a hearing to determine if termination of the dad's rights is appropriate?

"Yes, and notice must be sent to the biological dad. He of course has a right to defend against having his rights terminated. The court will also likely hold the adoption hearing immediately after they decide if termination of rights is appropriate."

Ultimately, the step dad can likely adopt the child though?

"It's possible. We do not have enough facts to know if dad abandoned the child. Mom says that dad hasn't had anything to do with the child in four years, but she also indicates that he is likely willing to consent to the adoption. It's clear there's some communication going on, and I would like to know to what extent. Although, if he does sign the consent, there will likely be no issue with step dad adopting the child."

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