“I have a three year old son who hasn’t seen his biological father since he was 7 weeks old. Paternity was established but nothing else. Every year my son gets a card on his birthday but nothing else. No phone calls, no visits, no attempt to actually see my son has ever been made. Last year I met a wonderful man who helps me raise my son and we are going to be married next month. My fiance made the comment that he would love to adopt my son as soon as we are married. I think that it’s a wonderful idea but I don’t know where to start. Can you point me in the right direction? please!”

My opinion of “Where to start?” is with the birth father. The easiest path to adoption is with consent. That would be two mature people communicating about what would be in their child’s best interests. You may want to do this communication through legal counsel, if you think there is going to be a fight. If you know there is going to be a fight, then it may be best to either forget the prospect entirely or file first and ask questions later. You should engage the services of an attorney qualified and experienced in the area of adoption law.

Even without consent, your fiance may still be able to adopt your son. An adoption petition (the actual form is different from state to state, so as always consult with an attorney) would need to be filed in the correct Court. If father answers the petition, the Court would eventually hold a hearing to determine whether father’s consent is necessary and eventually if the adoption is in your son’s “best interests.”

Some things that may play into the ability to terminate birth father’s rights without his consent: Did he financially support you and your son?; Did he hold himself out to the community to be the father of your child?; Are there any court orders regarding custody or visitation?; Could he point to any behaviors that in any way frustrated his efforts to parent?; Is there any history of abuse?; Does the birth father have the capacity to consent or not? Has he abandoned or neglected your son?

This is a critical for your son, so do some research and soul-searching before embarking on this. You would also do well to consult an attorney (or 2!) so you know the risks and costs before you start.


Michael Durgavich is an accomplished attorney and mediator. Maintaining a general practice in the San Jose, California area, Mr. Durgavich specializes in family law, bankruptcy, and alternative dispute resolution. Mr. Durgavich can be reached through his website at http://www.MichaelDurgavich.com. Contact This Author

State laws vary, and the above is intended as general advice, and not direct legal advice regarding any one particular situation in any one state. For direct personal legal advice related to your own situation you should consult an attorney familiar with the laws of your state and with your situation.