Divorce & Adoption

By Stephanie Reid

When a couple decides to get divorced during an adoption process, it does not necessarily halt the adoption, although the impact of divorce will depend upon the type of adoption involved. Parents of children whose adoption is finalized before the divorce will have the same rights as biological parents with regard to custody, visitation and child support. Divorce proceedings occurring prior to the finalization of the adoption could hurt the progression of the adoption, depending on the individual circumstances. There is also an interplay between adoption subsidies and the receipt or payment of child support.

Types of Adoption

There are a number of different types of adoptions, and the nature of the adoptive relationship can affect the impact of a divorce proceeding and the parents' rights. A consensual adoption occurs when the birth parents voluntarily relinquish their parental rights and agree to give the child to the adoptive parents. This agreement is contractual in nature, and the birth parents can require the adoptive parents to be married. A foster care adoption occurs when the birth parents' rights have been terminated by the state. The court has the ultimate decision over how the divorce will affect the adoption. A step-parent adoption occurs when the birth parent's new spouse wishes to adopt her children. The court will likely forbid this type of adoption upon the divorce of the step-parent and birth parent. An international adoption involves the adoption of a child from a country outside of the United States, and the adoption laws of that nation will control.

Divorce Before Adoption

Filing for divorce before the adoption is finalized could stop the adoption. In a consensual, contract-driven adoption, the birth parents are free to revoke their promise to hand over their child upon finding that the would-be adoptive parents have filed for divorce. Allegations of fraud could also occur if the birth parents believe the adoptive parents misrepresented themselves as a married, two-parent household when, in fact, they were planning to divorce. In a foster care adoption, the birth parents have no legal rights to contest the adoption on the grounds of the divorce of the potential adoptive parents. However, the judge, in his discretion, could invalidate the foster adoption if he finds that placing the child with the divorcing parents would not be in the child's best interests.

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

Divorce After Adoption

Once an adoption is finalized, the birth parents and courts no longer have any standing to contest the adoption on the grounds of the adoptive parents' divorce. The divorce proceedings will continue and the children are treated exactly as biological children under the law. The court will decide custody and visitation matters with the child's best interests in mind, and many states require divorcing parents to enter into a parenting plan detailing visitation and dispute resolution. Both adoptive parents are able to petition the family court for modifications to custody, support or visitation orders.

Child Support

The federal government has subsidies for adopted children known as Title IV-E Adoption Assistance. When adoptive parents divorce, it becomes an issue which parent is to receive this assistance and how these benefits affect child support calculations. The North American Council on Adoptable Children stresses that these payments are for the benefit of the children, not the parents. Further, the Internal Revenue Service explains that adoption assistance is tax exempt and considered public welfare benefiting the child. Parents who claim adopted children as dependents are required to pay child support at the same rate as parents with biological children despite the payment of any adoption assistance.

Divorce is never easy, but we can help. Learn More
Child Custody & Adoption
 

References

Related articles

Definition of Legal Separation and Divorce

Legal separation and divorce offer two alternatives for married couples who wish to separate long term or permanently. Legal separation and divorce can look quite similar from an outside perspective, but there are differences in the filing process and the finality of each option. Married couples considering parting ways can benefit from reviewing the differences between these two options to determine which option is best for their situation.

Pennsylvania State Law for Adoption Inheritance Rights

If you write a will to include your adopted child or children, the will governs how assets will be distributed to those children upon your death. An adopted child may still be able to inherit if the parent omitted her from a will. If a parent did not write a will, that parent's assets will be distributed through the state's laws of intestate succession, which means assets are distributed to relatives according to state law.

Adoption Vs. Legal Guardianship

Adoption and legal guardianship are often confused with each other, but they are two different routes to caring for a child whose parents or other guardians are unable to provide a home. A legal guardianship makes you responsible for the child until he reaches age 18. An adoption makes the child's legal status the same as if he was your birth child. Each method has its advantages and disadvantages.

Get Divorced Online

Related articles

Giving Up Parental Rights Through Adoption & Getting Your Kids Back

As a birth parent of a child being offered for adoption, you can change your mind, cancel your relinquishment of ...

How to Change the Father's Name on a Birth Certificate in Missouri

If you are the biological father of a child but are not named on the child's birth certificate, you face significant ...

How to Absolve Parental Rights in Ohio When Parents Are Divorced

Ohio courts typically split custody between divorcing parents in a manner they feel is best for the children. Though ...

Parental Custody Rights to a Newborn Child in Albuquerque, New Mexico

Although births are often joyous events, some births also create legal issues if parents need to establish their ...

Browse by category
Ready to Begin? GET STARTED