How to gain legal rights to a child that isn’t yours biologically.
We often get inquired about how a person gains legal rights to a child that isn’t theirs biologically. The answers aren’t simple, nor are they straightforward. In this blog, we will do our best to provide you with a simple overview of a complex area of the law. This will help you learn how to gain legal rights to a child that isn’t yours biologically.
In Arizona, there are only really two ways to gain legal rights over a child that is not yours legally; Adoption and Guardianship. Each option has a very specific set of requirements and procedural steps that must be followed or the Court will not grant the requests. While many issues can be handled without an attorney, these are complex matters that are best handled with the assistance of someone experienced and knowledgeable about the processes. Here at RPB Law, we pride ourselves on our ability to accurately and honestly assess each case and its likely outcomes. NO ATTORNEY CAN GUARANTEE AN OUTCOME, and if you meet with someone who says they can, you should be very wary and see that as a red flag.
To be clear there are some additional methods within the Juvenile and Family Law arenas for achieving legal rights to a non-biological child, such as In Loco Parentis and/or Grandparents Rights, but those are very specific situations that will be covered in a future blog…
Adoptions permanently turn over the rights and responsibilities of caring for a child over to someone or a married couple who are not the biological parents. Adoptions are not revocable. They are permanent. Anyone who wants to explore an adoption needs to know that any and all parental rights must be severed before an adoption can take place.
One of the most common adoption situations we see here is when the biological mother/father has remarried and they want to have the step-father/mother the legal father/mother of the child. In this situation, if the biological father/mother is in the picture at all, even if they aren’t the greatest, the adoption is unlikely to be successful unless the biological father/mother agrees to it. It should be additionally noted that even if the biological parent wants the adoption to happen, which includes their parental rights being terminated, the consent to adopt documents have very specific requirements, and have to be more than just a notarized statement.
Another common situation we see regarding potential adoptions is when grandparents or extended family members who have taken guardianship of a minor may feel like a guardianship is not permanent enough and may want to take over the parenting role completely. Again, the parents’ rights need to be terminated before any potential adoption can take place.
We have recently experienced an influx in consultation s regarding same-sex couples wanting to adopt following the Supreme Court s’ recent recognition of same-sex marriages. This is an area of particular difficulty, primarily because adoption laws in Arizona have not quite caught up with the Supreme Court Decision validating same-sex marriages. This has resulted in some confusion in the Courts about who can adopt. As the statutes currently read, “Any adult resident of this state, whether married, unmarried or legally separated, is eligible to qualify to adopt children. Husbands and wives may jointly adopt children.” The same statute later goes on to say, “If all relevant factors are equal and the choice a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.” Clearly Arizona law remains incredibly discriminatory against same-sex couples when it comes to adoption.
Finalizing an adoption can be a difficult and complicated process that requires a lot of paperwork being assembled and anything missing can draw out the process unnecessarily. Hiring an attorney to handle it can be a huge help and will streamline and simplify things.
Guardianship is when a third party is allowed by the Court to be responsible for a child, i.e. obtain medical care, make educated decisions, provide a home, food, care, and support for the child. There are two types of Guardianship under Arizona law. The first, Under title 14, which governs probate, wills, trusts, etc. and the second under title 8, which covers Juvenile law and Department of Child Safety cases. Functionally these two types are very similar. The differences are more about how the Guardianship gets put into place and how it ends if it ends.
Guardianships can be a great alternative to a dependency (DCS case) or termination of parental rights. The parents’ rights remain intact but basically are handed over to a third party until the parent can step back in. All the while the child is in a safe and stable home with someone willing and able to care for him/her. These guardianships are handled under title 8 because they arise out of a Juvenile Court case (dependency/DCS case) and are not necessarily voluntary, which means they don’t require the parents’ consent.
Ending a title 8 guardianship is not up to the parents, rather it is up to the Court that granted it. The involuntary nature of the Title 8 Guardianship means that a parent would have to go before a Juvenile Court Judge and prove that he/she is capable of being a fit and proper parent and that he/she had remedied the issues that caused DCS involvement.
The more common type of Guardianship is a Title 14 guardianship, these are voluntary and most often are accomplished with parental consent. A common situation for these is when a military parent is deployed and need a 3rd party to exercise parental rights of a child while they are deployed. These guardianships are generally temporary in nature and serve to ensure a child has proper legal supervision during a parent’s absence or inability to provide appropriately for the child.
The voluntary nature of a title 14 guardianship means that it can be revoked at any time by the parent. The Title 14 Guardianship is perfect for military families where the only parent or both parents are being deployed and grandparents or aunts/uncles need to step in to take care of the kids until the parent(s) return. This could also be useful in situations where the parents are deported or imprisoned.
Setting either of these types of guardianship in motion is difficult, and the efforts involved are very complex. Walking someone through the procedures and requirements in depth is too boring to discuss here, which is why consulting an attorney who knows how to handle these cases is vital.
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