Divorce During Adoption

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Divorce - few of us plan for it when marrying, fewer of us plan for it during adoption. If you are considering adoption or are in the process of adoption, a decided-upon divorce could have some bearing on how the adoption will proceed. Below are several fictitious situations demonstrating the relationship between divorce and adoption and the legal significance of the divorce. This article is written to address birthmother's rights. The rights of birthfathers, whether alleged or presumed, are not discussed; this omission is due to space, not importance.

Situation 1. Liz and Larry would like to adopt a child. Liz has adult children from her seven previous marriages. Larry, her junior by many years, has no previous marriages or children. They have been married about 11 months. Legally, can they adopt?

Yes. Previous marriages, other children, age differences between the couple - none of these factors are in themselves adequate reasons to deny an adoption. The Court, via their investigative arm, the Department of Social Services, will examine Liz's (and Larry's) marriage history in the home study investigation, including the reasons for the marriages, remarriages, and divorces; why this marriage is different (among other things, Larry being her junior would be discussed here); what emotional growth has occurred; and what effects the divorces have had on her and her children's lives. Among other things, the home study will also investigate the "whys" of adoption and relevant parenting issues.

Situation 2. Liz and Larry, with an adoption pending, decide that this marriage really is a mistake. The child has been in their home for four months and the birthmother has signed a consent, valid under California law, to both Liz and Larry as a married couple. Liz and Larry both want to complete the adoption. If they proceed with the adoption and do not disclose that they are planning a divorce until after the adoption finalization, what are the legal ramifications?

They would not be the first couple not to disclose an upcoming divorce, but Liz and Larry would be perpetrating a fraud upon the Court and upon the birthmother as well. The Court assumes that the information it and the birthmother has is materially unchanged and valid during the entire pendency of the adoption. Issues covered during the home study would include the stability of the couple's marriage and each partner's satisfaction with the marriage. If divorce has been decided upon, then the information given to the social worker is either out of date or fraudulent.

A birthmother's consent to the adoption must be based upon her personal knowledge of the adopting parents. This includes a number of factors, including marital status, stability of the relationship, age, religion, ethnic background, employment, approximate income level, where the family lives, the type of housing they have, and whether a prospective adopting parent has a life-threatening disease. If the facts on which a birthmother has based her decision are no longer valid when her surrender is accepted by the court (the day of adoption finalization), then her decision is not an informed one. The consent to adoption...must be a voluntary and knowing intelligent act done with sufficient awareness of relevant circumstances and likely consequences," (San Diego County Dept. of Public Welfare v. Superior Court (1972) 7 Cal.3d 1, 9-10)

If the birthmother wished to nullify the adoption and she could prove that the couple had really been planning a divorce prior to the adoption finalization, she would argue that her consent was voidable based upon fraud (this failure to disclose something that should have been disclosed). She may bring this action up to five years after the finalization of the adoption and in some cases may be eligible for appointed counsel.

Situation 3. Some facts as above, but Liz and Larry immediately file for divorce, and disclose same to Department of Social Services. What then?

If the birthmother has consented to the adoption by Liz and Larry, as a married couple, their pending divorce must be disclosed to her. This disclosure may come from the adopting parents or from the social worker. The birthmother may wish to continue with the adoption plan and reiterate her consent, or may choose to revoke her consent based upon the changed circumstances of the prospective adopting couple (see Situation 5).

Social Services would update Liz and Larry's home study and present the new information to the courts. Under current California Department of Social Services policy, a negative recommendation would be presented to the Court, since the Department will not approve the adoption of a child by two unrelated individuals. Nevertheless, the Court is mandated to make its own judgements based on the best interest of the child, regardless of Social Services' recommendation.

If both Liz and Larry adopt the child, both have all parental rights and responsibilities to the child - including the duty to pay child support.

Situation 4. Same facts as above, but Liz and Larry disclose to the birthmother that they are going to be divorced. Now, rather than Liz and Larry both adopting, only Liz wants to proceed with the adoption. What happens then?

Assuming the birthmother is in agreement with the plan, the adoption can proceed. In Adoption of Barnett (1960 54 Cal.2d 370), it was established that the birthmother does not need to execute entirely new consent if she has already executed one in favor of the couple. She needs to be informed and the best proof of her accepting the new situation would be a written statement from her confirming this. However, it may suffice to inform her (in writing, with proof of delivery) of what is happening and give her the procedures for protesting or revoking her consent if the new arrangement is not satisfactory to her.

The Department of Social Services would update their home study indicating that only Liz would be the adopting parent and would give a recommendation based on their investigation and findings. The Department of Social Services does not have a policy against a single parent adopting a child.

Also, Larry must sign an adoption "agreement" that only Liz is adopting. Under these circumstances, Larry would not be liable for child support upon the adoption finalization.

Situation 5. Liz and Larry's birthmother wishes to withdraw her consent based up the divorce. How does this work?

Civil Code Section 224.64 provides that once given, and prior to the finalization of the adoption, a birthmother can petition the court to withdraw her consent. The Court will determine, in light of the changed circumstances, whether this request is reasonable. In addition, the Court will consider whether it is in the best interests of the child to grant this petition. The age of the child, the bonding with the adopting parents, the potential bonding with the birth family and the extent to which a birthmother could provide proper care and guidance for the child are some of the factors which would be explored. The court will also consider the changed circumstances of the couple and the information which was presented to the birthmother. The birthmother would have a strong argument that her withdrawal be granted because her consent was based upon facts which are no longer present.

Situation 6. Two years after the adoption is completed, Liz and Larry decide that they will divorce. Are there any legal ramifications to the adoption?

No legal ramifications other than typical divorce and child custody issues apply. Psychologically, however, it is possible that an adopted child may have more difficultly with abandonment issues than a biological child in divorce situations.

Situation 7. As above, and shortly thereafter Liz remarries her fourth husband. Her newest husband wishes to adopt the child. Does the birthmother need to consulted?

The birthmother need not be consulted. When an adoption is completed, all of the birthparent's rights are extinguished. The adopting parents exclusively have all the responsibilities and rights of parenthood to their child.

Please consult an adoption professional if you have specific concerns regarding divorce/adoption issues.

Credits: Diane Michelsen, Esq., MSW, Colleen Winchester,

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