What Happens to an Adopted Child During a Divorce?
Legal Rights and Responsibilities of Adoptive Parents
The Court uses many terms to describe a diverse range of parents. You might hear the Court refer to individuals as a child’s birth parents or biological parents or for parents who have adopted children as the adoptive parents. If you have adopted children, you may be concerned about what happens when adoptive parents separate and if the divorce process could have any impact on your ability to care for your children.
When parents adopt a child and become the child’s legal parent, certain rights and obligations are created. The adoptive parents have the same responsibilities to their adopted children as they have toward biological children once the adoption process has been completed.
The parents must take care of the adopted child, including providing for his or her education, housing, and medical care.
If you and your spouse have gone through the adoption process, you have been determined as the legal parents of your adopted children. That legal relationship will not change because of a separation or divorce.
It does not matter if you are not the child’s biological parents if you have adopted children. The Court will treat your divorce like any other divorce, and you will be able to fashion a child custody schedule that fits your needs.
Both Parents Have Legal Rights to Seek Custody
When there is a divorce after the adoption of a child, the court treats the adopted child exactly the same as a child that is biologically related to the parents when determining child custody. The adoption process made the adoptee the legal child of each adoptive mother and/or father.
In other words, the court will want to ensure a stable relationship between both parents after the divorce. The court considers the best interests of the child in making custody arrangements. The health, safety, and well-being of all children are considered when the court makes a child custody determination.
Once parents create two independent households, the time spent in each home by the children born to and adopted by the parents must be decided. When divorce occurs, families can make their own child custody agreements or ask the court to make a decision as part of the divorce proceeding.
Related: Visitation Rights for Child Custody
What Type of Custody Can be Ordered?
The court makes decisions about both legal custody and physical custody. Sometimes the court decides that joint custody is best, and other times, one parent is awarded primary custody.
Joint physical custody is where parents share about the same amount of parenting time with the children as the other parent. Sole or primary physical custody is where the child lives primarily with one parent and visits with the other.
Joint legal custody gives both parents equal rights to make decisions about their children. These legal decisions could include choices about the child’s education or religion, medical care, extracurricular activities, or various other choices about upbringing and care. In a sole legal custody situation, only one parent has legal rights to make choices for the child.
When parents divorce, the best interests of the children are considered when the Court makes a postnuptial child custody order.
Does it Matter if The Adoption Was by a Stepparent?
It is common that, at some point during a marriage, a stepparent adopts a child of their spouse. The non-custodial biological parent must either consent to give up their parental rights or else the court must terminate the non-custodial parent’s rights before the adoption can take place. Once the adoption takes place, the stepparent is a legal parent with all the same rights and responsibilities as a birth parent.
A major concern of these adopted parents is that because their spouse is the parent with the biological link, the spouse has an advantage in custody matters during divorce proceedings.
The adoptive parent has the same legal rights as the non-adoptive biological mother or father during the divorce proceedings. The best interest of the child is the primary consideration for the court.
The Child Has a Right to Child Support
No matter the biological relationship, because parents have created a legal responsibility to their adopted child, child support can be awarded based on the laws of the state. The Court treats adopted children exactly the same as biological children, and there is no distinction made between natural and adopted children when the Court makes a child support determination.
As with all child support cases, the amount of financial support will be decided by a calculator. The major factors that impact child support determinations are the adjusted net incomes of the parents and the percentage of time that the child spends with each parent pursuant to the custody arrangement. The amount of child support payments determined by the calculator is called guideline child support.
Child Support and Adoption Assistance Payments
In certain cases, an adopted child receives a state adoption subsidy. This adoption subsidy is paid to address special considerations of an adopted child. Special considerations include the adoption of an older child to help keep siblings together if race or language is a barrier to adoption and certain other factors. The adoption subsidy payment can be increased to pay for a child’s extraordinary expenses.
But when a two-parent household separates due to divorce, the question becomes how those adoption subsidy payments impact child support, if at all.
There is no clear answer. Normally the parent who receives the subsidy will claim the payments should not be used as part of their income or to offset the responsibility of the other parent.
The non-recipient parent will typically argue that the payments were intended to offset the costs of supporting the child and should be factored in when making child support orders.
Mckean Family Law will take all factors into consideration when making support orders, so it is likely that the adoption assistance payments will be factored into the final support order.