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Determining when consent is required in a stepparent adoption

On Behalf of | Mar 28, 2022 | Adoption

Adoption by a stepparent can bring a family closer and provide a child with both financial and emotional security. Before an adoption can take place, the biological parent must consent to the adoption in most cases. A new case from the Court of Appeals of Indiana, In re A.B. v. B.B., confirms this and overturns a trial court’s decision to grant a stepfather adoption.

Indiana law regarding consent to adoption

As stated above, in most cases a biological parent must consent to a stepparent adoption. The law contains several exceptions, however, including when over the past year the parent:

  • Does not communicate “significantly” with the child without good reason; or
  • Does not provide the care and support of the child required “by law or judicial decree”.

If a biological parent fails in both of these regards, the court can declare that consent is not required.

A question of communication

In the recent case, the question was one of communication. The court had suspended the father’s parenting time the year before due to compliance issues and a pending criminal charge. The mother and stepfather moved shortly before filing the adoption petition and did not inform the father of their new location.

The custodial mother and stepfather claimed that the father did not communicate with the child for the year prior to the stepfather’s petition to adopt. The father produced evidence at trial and argues on appeal, however, that he attempted to text and call on many occasions, but his calls went straight to voicemail and were never answered or returned. He also attempted to send birthday and Christmas gifts that were returned unopened. He alleged that the mother interfered with his ability to communicate with his child. At trial, the mother claimed that she did not respond to the communications because the child did not want to talk to her father.

It is not up to a child to decide

The Appeals Court reversed the lower court’s decision and stated that the father did make significant attempts to communicate with his child. The court further went on to say that a custodial parent has no right to interfere with communication from a non-custodial parent. Furthermore, the custodial parent has a responsibility to facilitate that communication. Court precedent shows that a child lacks the authority and ability to make this decision and leaving it up to them puts them at risk of undue influence by the custodial parent.

In this case, the court found that the mother and stepfather not only interfered with the communication, but the mother violated the paternity order by failing to notify the father of their new address. The court reversed the finding that consent was not required and the grant of the stepfather’s adoption petition.

What this case can tell us about stepparent adoptions

The court takes seriously a biological parent’s rights regarding his or her child. One cannot assume that just because a parent has legal problems and had their parenting time suspended that they no longer have parental rights. Furthermore, a custodial parent may not interfere with the other parent’s attempts to communicate, then allege the parent did not communicate, regardless of the child’s wishes.