Child Custody & Adoption

By Stephanie Reid

Legal adoption occurs when both biological parents give up their parental rights to a non-biological parent or parents. The court then awards the adoptive parents full legal custodial rights over the child. Custody rights over a child can be either legal custody, physical custody or both. These rights may be held by biological parents, third parties or a state welfare agency. Obtaining custody over a child may be the first step toward adopting the child, particularly in the context of a state child-welfare agency and the foster care system.

Parental Child Custody

The most basic form of child custody is the child's biological parents. When parents divorce or are unable to agree on a custody arrangement, the court will make a determination as to which parent will have legal and physical custody. Legal custody refers to the right of the parent to make decisions concerning the child's medical care, education, religious affiliations, discipline and other factors that affect the child's life. Physical custody, also known as physical placement, refers to the residence where the child spends the majority of his time. The court makes custody decisions in the child's best interests and the court will consider the child's adjustment to his school, surroundings and community, the parent's wishes, the parent's background and ability to act as parent. The court considers the child's wishes, if the child is old enough to assert his preferences with regard to living arrangements and custody, generally around age 14.

Third-Party Child Custody

Non-parent third parties may obtain child custody rights when biological parents consent to the arrangement or if it becomes necessary under the circumstances to grant custody to a third party. Third-party custody rights may vest in a grandparent, a stepparent, an immediate family member or other adult with a strong relationship with the child. Courts may award third-party custody when the parents are unable to fulfill their roles due to reasons including substance abuse, incarceration, incapacity, absence from the state or country, deployment or death.

Divorce is never easy, but we can help. Learn More

State Child Custody

If a child is abused, neglected or dependent, the state child-welfare department will assume custody over the child until the biological parents are able to overcome their parenting obstacles or their rights are terminated. Once a child has entered state custody, the state will arrange for the child to live with a foster family pending the outcome of the case. Generally, the biological parents have one year to work toward reunification with the child before child welfare changes the goal to termination of parental rights and adoption.

Adoption Following Custody

Adoption is only possible if the biological parents have given up their parental rights. Parents may give up their rights voluntarily or the court may terminate their rights after a finding that the parent has engaged in physical or sexual abuse, abandonment, neglect, alcohol- or drug-induced incapacity or suffers from mental illness. Once the court terminates legal parental rights, the court will examine adoptive resources for the children and most often will turn to the individual or family with the closest bond with the child. If a third party holds custody rights over the child, it is likely the court will inquire as to whether that party wishes to adopt. The same is true for a foster family who has cared for the child in the months or years preceding the termination of parental rights.

Adoption Procedures

Even if a child has lived with a third-party non-parent or foster family for a significant time, the state still must follow extensive procedures before officially recommending the adoptive placement. An individual or a family pursuing adoption through foster care must consent to a full home study, including interviews of others who live in the home and an inspection of the residence. Many states require adoptive parents to take parenting classes or participate in parent-child interaction therapy. For children adopted through the foster care system, a judge will not formally legalize the adoption until six months to a year after the court first placed the child with the family. Private adoptions not involving state custody may move more quickly, particularly if both parents consent to the arrangement.

Divorce is never easy, but we can help. Learn More
Custody Law for Removing a Child From the Mother



Related articles

New York Statute for Visitation

The best interests of the child is paramount in determinations of child custody in New York. To that end, it is preferable that parents reach a voluntary agreement instead of going to court. However, if they cannot reach an agreement, the court will make a determination as to both legal and physical custody, with the nonresidential parent generally provided visitation rights as part of sole custody orders. Further, the court may be petitioned when issues with visitation arise and the parents cannot agree.

Effect of Cohabitation on Child Custody in Kansas

When unmarried, separated or divorced parents raise their child in two households, one parent's cohabitation with a new partner may cause problems. For moral, personal or religious reasons, a parent might feel uncomfortable about the child living in a home the other parent shares with someone outside of marriage. Also, a parent may have safety concerns or distrust the ex-spouse's partner or roommate. Due to factors in Kansas law, cohabitation may affect parents' court-ordered custody arrangements.

Parental Rights Terminated Due to Child Abandonment

Child abandonment can result in serious legal consequences. For some parents, child abandonment may lead to the permanent loss of parental rights through an involuntary termination by the state. If a state agency has taken a child into the child welfare system or placed a child in foster care, the child's parents may need legal help to prevent the termination of their rights.

Get Divorced Online

Related articles

Child Custody Rights for 12 Years & Older

Establishing child custody can be a highly contentious aspect of divorce. Although each parent may feel entitled to a ...

Divorce With Children & a Drug Addicted Spouse in Maryland

There are two types of child custody in Maryland: physical custody and legal custody. A parent with physical custody is ...

New York State Supervised Visitation Laws

Supervised visits in New York are ordered by a county Family Court or Supreme Court when a visit with a non-custodial ...

How to Determine Who Will Win Child Custody

Child custody laws vary from state to state. Likewise, different jurisdictions have different preferences and ...

Browse by category
Ready to Begin? GET STARTED