When a step-parent petitions the court for the adoption of a stepchild, the step-parent must have the consent of the custodial parent spouse. In addition, the step-parent must have the consent of the non-custodial parent, or in the alternative, the non-custodial parent’s rights must be terminated. When consent is not given, the usual basis for termination is abandonment. See Family Code Section 7822. However, abandonment is usually a factual dispute that must be decided by the Court. In the recent case of E.M. (2014) 228 Cal. App. 4 828, the mother claimed that the child’s father did not pay adequate support, did not visit or communicate with the child, and that he therefore abandoned the child. The trial court denied the mother’s petition to terminate the father’s rights and held that the father did not intend to abandon the child as required by Family Code Section 7822. In this case, the court found that the father’s monthly child support payments met the requirements of the statute and that the reason he did not visit the child is because the mother actively prevented him from doing so.
The take away from this case is that if you cannot prove abandonment under Section 7822, then you may want to try offering to waive child support, even past child support, in exchange for a consent. Alternatively, you may want to wait until the child is 18 and consent is no longer required.
If you have questions regarding step-parent adoption, please contact our office to schedule a consultation. The Law Office of Family Law Specialist Richard E. Bawden also handles legal issues regarding adoption, annulment, collaborative divorce, divorce, domestic violence, litigation, legal separation, mediation, paternity, spousal support, pre-marital and post-marital agreements. Dial 909.792.0222 or email us at [email protected] You might also want to get more information at our website: www.richardbawdenlaw.com. The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.