grandpa and grandson - Mundahl Law, PLLC

Children need love, guidance, care, and protection. Usually parents provide that care, often with the support of other adults in the child's life. But as we all know, there are times when biological parents, for whatever reason, aren't in a position to raise their child. When that happens, a grandparent or other adult may step in to adopt the child. Sometimes that person is a "de facto custodian" who has already been caring for the child as a parent would for a period of time. Other times, the third party is not acting as a custodian, but is a relative who is interested in the child's welfare. Then there are times when it is prudent to go beyond a change of custody to an actual adoption.

This is known as "third-party" adoption, and it can be a good outcome for children, biological parents, and adoptive parents alike. Let's talk about what third-party adoption involves, and whether it might be the right option for your situation.

Do Biological Parents Have to Consent to Third-Party Adoption?

It's certainly easier for all involved if biological parents are on board with the idea of a third party adoption. Children can easily pick up on stress and tension, and a peaceful transfer of parenting duties and rights makes things easier on them.

Typically, biological parents will sign a private consent to adoption. This document terminates all of their parental rights. While this may be best for the child, it may, understandably, also be very difficult for the biological parent or parents. In some cases, adoptive parents may agree to send annual pictures and updates to the biological parents, which can give them great peace of mind regarding their decision to consent to adoption. If parents do agree to sign a consent, the county must still be notified.

If biological parents are unwilling to sign a consent for adoption, the third party seeking to adopt must file a separate action seeking to terminate the biological parents' parental rights.

The Third-Party Adoption Process

Adopting a relative can be very complicated. In a stepparent adoption, one of the birth parents is involved in and seeks the adoption. In a stranger adoption, the biological parents' rights have already been severed. By contrast, in a grandparent or third-party adoption, the biological parent is losing, but may not have already terminated, their parental rights.

The process is much harder if a parent or parents do not want their rights severed. In some cases, even the child may be conflicted about or even opposed to the adoption. There may also be resentment within the extended family if others oppose the adoption or would prefer to be the adoptive parents themselves. While it is complicated the problems are not insurmountable. For these reasons, if you are considering a third-party adoption, you should not act without the support and guidance of an experienced family law attorney.

The adoption process begins with filing a petition for adoption. If the biological parents have not consented in writing to the adoption, a preliminary hearing will be scheduled so that they have the opportunity to respond to the petition. There may be additional hearings in which other family members have the right to appear and object to or intervene in the adoption.

If the Minnesota Department of Human Services is involved in the child's case due to abuse or neglect by the parents, a social worker may also be involved in the adoption process and have to sign off on this. Don't be intimidated by this; if your home is a stable, secure place for the child, the social worker will support your adoption.

Most third-party adoptions do not require a trial. However, a trial is always a possibility, especially if biological parents who previously consented to the adoption withdraw their consent. A trial would focus on whether the biological parents' rights should be severed, and whether a permanent placement with you would be in the child's best interests. Whether or not there is a trial, there will be a final hearing at which the severance of the biological parents' parental rights and your official new legal relationship to the child.

Who is Eligible to Adopt a Child in a Third-Party Adoption?

You don't necessarily need to be a grandparent or other relative to adopt a child through a third-party adoption. However, you must have "standing" to adopt. Standing is a legal concept that means you have a legal interest that a court recognizes and is willing to protect. So, for instance, even if it's obvious that it's not in a child's best interest to remain with a biological parent, a neighbor down the street who has no real relationship with the child could not just file a petition for custody or try to adopt.

By adopting, you are terminating another person's legal right to parent their child or to inherit from them. In order to show that it's best for the child that that happen, you must be able to prove that there is some significant reason, like abandonment, neglect, long-term incarceration, or other serious factors that indicate the biological parent's rights should be terminated and it's in the child's best interests for you to adopt.

Third-party adoption can be protracted and complicated, as courts are trying to preserve the well-being of children while also protecting the legal rights of all involved. If you are interested in adopting a child through third-party adoption, an experienced Minnesota family lawyer can guide you through the legal process.

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