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  1. #1

    Default Step Parent Adoption

    My husband of four years wants to adopt my son. This is where the simplicity ends.

    1. The biological father (J) was never married to me, has never paid support, and is not interested in any parental rights. He does not even speak to me, all communication with him goes through his wife via email (if I need medical history or something) and I am not sure if they live in Florida or Tennessee at the moment, she is unwilling to disclose that information to me.

    2. When my son was born, my divorce with my first husband (E) was not final (it took forever) and this presents me with a dilemma- technically E would be the legal father, since there was no other paternity established? Or am I wrong on that? There were no custody/child support arrangements established in our divorce, so he is not documented as being my son's father in any legal context. Do we need consent from him?

    3. There is no father listed on the birth certificate. (J) was aware of the birth and came to the hospital, and even took me for private DNA testing, but still never signed the birth certificate or acknowledged paternity formally/legally. Do I need an affidavit of nonpaternity from him even if he is not on the birth certificate?

    4. Can we proceed with the adoption without consent from anyone since there has been no legal establishment of paternity?

    5. My current husband (M), who wants to adopt my son, is in the military. His driver's license is from Texas, although we have both resided physically in Florida for four years. It is my understanding that he needs to be a resident of Florida for six months, is this a legal residency or physical residency, and are there special exceptions for military persons permanently stationed? It has been our goal to maintain his legal residency in Texas, as they have great veteran benefits for when he retires.

    Looking forward to your advice.

  2. #2

    Default Re: Step Parent Adoption

    Contact an atty, there are a lot of issues that need to be addressed in this case. It would stand to reason that the court is going to want to know who the father is so that he can legally give up his parental rights to the child.

  3. #3

    Default Re: Step Parent Adoption

    We really can't afford an attorney, I was hoping for some direction so we could proceed ourselves.

    I will not have a problem getting consent from either or both, I just need to know what is required... or if consent is necessary given the circumstances.

  4. #4
    Join Date
    Jan 2008
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    Default Re: Step Parent Adoption

    2) Yes, because you were still married when the child was born. He is legally the father. You need to have paternity legally disestablished.

    3) The law requires that he consent. There will be papers he will be required to sign - AFTER he is established as the father through the courts.

    4) No.

    As noted before, you need an attorney. First consultation is often free.

  5. #5
    Join Date
    Sep 2005
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    98,846

    Default Re: Step Parent Adoption

    Florida's adoption statutes can be read here.
    Quote Quoting Florida Statutes, Sec. 63.062. Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue.
    (1) Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:
    (a) The mother of the minor.

    (b) The father of the minor, if:
    1. The minor was conceived or born while the father was married to the mother;

    2. The minor is his child by adoption;

    3. The minor has been adjudicated by the court to be his child by the date a petition is filed for termination of parental rights;

    4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c) by the date a petition is filed for termination of parental rights; or

    5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).
    (c) The minor, if 12 years of age or older, unless the court in the best interest of the minor dispenses with the minor's consent.

    (d) Any person lawfully entitled to custody of the minor if required by the court.

    (e) The court having jurisdiction to determine custody of the minor, if the person having physical custody of the minor does not have authority to consent to the adoption.
    (2) In accordance with subsection (1), the consent of an unmarried biological father shall be necessary only if the unmarried biological father has complied with the requirements of this subsection.
    (a)
    1. With regard to a child who is placed with adoptive parents more than 6 months after the child's birth, an unmarried biological father must have developed a substantial relationship with the child, taken some measure of responsibility for the child and the child's future, and demonstrated a full commitment to the responsibilities of parenthood by providing financial support to the child in accordance with the unmarried biological father's ability, if not prevented from doing so by the person or authorized agency having lawful custody of the child, and either:
    a. Regularly visited the child at least monthly, when physically and financially able to do so and when not prevented from doing so by the birth mother or the person or authorized agency having lawful custody of the child; or

    b. Maintained regular communication with the child or with the person or agency having the care or custody of the child, when physically or financially unable to visit the child or when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.
    2. The mere fact that an unmarried biological father expresses a desire to fulfill his responsibilities towards his child which is unsupported by acts evidencing this intent does not preclude a finding by the court that the unmarried biological father failed to comply with the requirements of this subsection.

    3. An unmarried biological father who openly lived with the child for at least 6 months within the 1-year period following the birth of the child and immediately preceding placement of the child with adoptive parents and who openly held himself out to be the father of the child during that period shall be deemed to have developed a substantial relationship with the child and to have otherwise met the requirements of this paragraph.
    (b) With regard to a child who is younger than 6 months of age at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:
    1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.

    2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother's pregnancy and the child's birth in accordance with his ability to pay.

    3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.
    (c) The petitioner shall file with the court a certificate from the Office of Vital Statistics stating that a diligent search has been made of the Florida Putative Father Registry of notices from unmarried biological fathers described in subparagraph (b)1. and that no filing has been found pertaining to the father of the child in question or, if a filing is found, stating the name of the putative father and the time and date of filing. That certificate shall be filed with the court prior to the entry of a final judgment of termination of parental rights.

    (d) An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.
    (3) Pursuant to chapter 48, an adoption entity shall serve a notice of intended adoption plan upon any known and locatable unmarried biological father who is identified to the adoption entity by the mother by the date she signs her consent for adoption or who is identified by a diligent search of the Florida Putative Father Registry, or upon an entity whose consent is required. Service of the notice of intended adoption plan is not mandatory when the unmarried biological father signs a consent for adoption or an affidavit of nonpaternity. The notice may be served at any time before the child's birth or before placing the child in the adoptive home. The recipient of the notice may waive service of process by executing a waiver and acknowledging receipt of the plan. The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan he must, within 30 days after service, file with the court a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2. and a claim of paternity form with the Office of Vital Statistics, and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics. The notice must also include instructions for submitting a claim of paternity form to the Office of Vital Statistics and the address to which the claim must be sent. If the party served with the notice of intended adoption plan is an entity whose consent is required, the notice must specifically state that the entity must file, within 30 days after service, a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interest of the child.
    (a) If the unmarried biological father or entity whose consent is required fails to timely and properly file a verified response with the court and, in the case of an unmarried biological father, a claim of paternity form with the Office of Vital Statistics, the court shall enter a default against any unmarried biological father or entity and the consent of that unmarried biological father or entity shall no longer be required under this chapter and shall be deemed to have waived any claim of rights to the child. To avoid a default, within 30 days after receipt of service of the notice of intended adoption plan:

    1. The unmarried biological father must:
    a. File a claim of paternity with the Florida Putative Father Registry maintained by the Office of Vital Statistics;

    b. File a verified response with the court which contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2.; and

    c. Provide support for the birth mother and the child.
    2. The entity whose consent is required must file a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interest of the child.
    (b) If the mother identifies a potential unmarried biological father whose location is unknown, the adoption entity shall conduct a diligent search pursuant to s. 63.088. If, upon completion of a diligent search, the potential unmarried biological father's location remains unknown and a search of the Florida Putative Father Registry fails to reveal a match, the adoption entity shall request in the petition for termination of parental rights pending adoption that the court declare the diligent search to be in compliance with s. 63.088, that the adoption entity has no further obligation to provide notice to the potential unmarried biological father, and that the potential unmarried biological father's consent to the adoption is not required.
    (4) Any person whose consent is required under paragraph (1)(b), or any other man, may execute an irrevocable affidavit of nonpaternity in lieu of a consent under this section and by doing so waives notice to all court proceedings after the date of execution. An affidavit of nonpaternity must be executed as provided in s. 63.082. The affidavit of nonpaternity may be executed prior to the birth of the child. The person executing the affidavit must receive disclosure under s. 63.085 prior to signing the affidavit.

    (5) A person who signs a consent to adoption or an affidavit of nonpaternity must be given reasonable notice of his or her right to select a person who does not have an employment, professional, or personal relationship with the adoption entity or the prospective adoptive parents to be present when the consent to adoption or affidavit of nonpaternity is executed and to sign the consent or affidavit as a witness.

    (6) The petitioner must make good faith and diligent efforts as provided under s. 63.088 to notify, and obtain written consent from, the persons required to consent to adoption under this section.

    (7) If parental rights to the minor have previously been terminated, the adoption entity with which the minor has been placed for subsequent adoption may provide consent to the adoption. In such case, no other consent is required. The consent of the department shall be waived upon a determination by the court that such consent is being unreasonably withheld and if the petitioner has filed with the court a favorable preliminary adoptive home study as required under s. 63.092.

    (8) A petition to adopt an adult may be granted if:
    (a) Written consent to adoption has been executed by the adult and the adult's spouse, if any.

    (b) Written notice of the final hearing on the adoption has been provided to the parents, if any, or proof of service of process has been filed, showing notice has been served on the parents as provided in this chapter.
    (9) A petition for termination of parental rights must be filed in the appropriate county as determined under s. 63.087(2). If a parent whose consent is required objects to venue in the county where the action was filed, the court may transfer venue to a proper venue consistent with this chapter and chapter 47 unless the objecting parent has previously executed a waiver of venue.

    (10) The waiver of venue must be a separate document containing no consents, disclosures, or other information unrelated to venue.

  6. #6

    Default Re: Step Parent Adoption

    1. The minor was conceived or born while the father was married to the mother;


    The man I was married to at the time is not the father, and knows he is not the father, we resided in entirely different states and had been separated for years at this point. Is he required to give consent? On the consent form he has to say he is the "father" and his signature would swear that the information is true- if he is NOT the "father" does he have to fill out that form stating he is?


    I can get an affidavit of nonpaternity from the biological father, I can reach his family and they can contact him for me.

    So if I have the affidavit of nonpaternity from the biological father, do I still need consent from my ex husband? The divorce was final when he was 3 months old... if that even matters. I'm sorry for all the questions, I just look at the term father in the laws and wonder if it refers to legal father or biological father or both if necessary?

    Any ideas on the residency thing though? I guess I can go down to Navy Legal and ask these questions, I just wanted to get an idea of what to expect.

  7. #7
    Join Date
    Apr 2009
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    Default Re: Step Parent Adoption

    Quote Quoting anotherspiff
    View Post
    1. The minor was conceived or born while the father was married to the mother;


    The man I was married to at the time is not the father, and knows he is not the father, we resided in entirely different states and had been separated for years at this point. Is he required to give consent? On the consent form he has to say he is the "father" and his signature would swear that the information is true- if he is NOT the "father" does he have to fill out that form stating he is?


    I can get an affidavit of nonpaternity from the biological father, I can reach his family and they can contact him for me.

    So if I have the affidavit of nonpaternity from the biological father, do I still need consent from my ex husband? The divorce was final when he was 3 months old... if that even matters. I'm sorry for all the questions, I just look at the term father in the laws and wonder if it refers to legal father or biological father or both if necessary?

    Any ideas on the residency thing though? I guess I can go down to Navy Legal and ask these questions, I just wanted to get an idea of what to expect.


    The man you were married to is still the legal father. HIS paternity needs to be disestablished.

    Honestly, you need an attorney. This isn't a DIY project.

  8. #8

    Default Re: Step Parent Adoption

    Can he still disestablish paternity if he refused to do it when my son was born? Due to the biological father's lack of interest my ex husband felt it was in the child's best interest to remain the legal father, even if he had to pay child support, even though in the end we have no child support arrangements formally set up. Considering all this, it seems the following statments prohibiting disestablishment of paternity:

    1. The alleged father cannot have acknowledged paternity, signed the baby’s birth certificate, adopted the child or otherwise voluntarily assumed responsibility for child support for the child after discovering that they are not biologically related.
    2. The alleged father cannot have previously blocked the true biological father from assuming parental responsibility.
    3. The alleged father cannot have ignored previous notices or orders to take a DNA test in connection with legal proceedings concerning the child.
    4. The alleged father must be current on his legally established child support obligations (unless truly unable).
    5. The challenge must result from new evidence coming to light.

    ...would bar him from doing so, ESPECIALLY when the biological father is sending me an affidavit of non-paternity as well, and never fought for parental rights.

    Is it possible to petition for adoption and include the consent from the ex-husband (as the presumed legal father) as well as include the affidavit of non-paternity from the biological father? The affidavit of non-paternity swears that the biological father will never legally acknowledge the child, which contradicts the whole process of disestablishing then establishing paternity to gain consent from the birth father.

    I'm really not seeing the point in hiring a lawyer to do this when everybody is in agreement. I could see if someone wanted to contest the adoption but in this case no one is?

  9. #9
    Join Date
    Apr 2009
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    Default Re: Step Parent Adoption

    This is why you need an attorney:

    Biological Dad is not involved in this at all - period. He has no child. The child has one, and only one, legal father (your ex-husband) - thus it's HIS consent which will be needed, not the biological dad's.

  10. #10

    Default Re: Step Parent Adoption

    If you think that you are capable of doing this sans atty, go for it. However, there are so many issues here that may, in the future, cause a basis for challenge if not done correctly, that the cost of the atty now could save a lot of time and money later. If everyone is in agreement, the cost is going to be lower, with the atty guiding you and making sure that all the t's are crossed and i's are dotted.

    At the very least, find an atty that will give you a free first consult, and lay this out for him/her. The answers that you get will be much more reliable, and you will have a much better sense of whether or not you feel comfortable trying to do this on your own.

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