Do I Need My Ex’s Consent to Adopt If His Biological Father Gives His Rights to Me?

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“My fiance was married for almost 8 years. His, at the time, wife had a child from another man. While they were married, they began to explore the process of adopting said son. They decided it wasn’t necessary for the price.

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Now, they are divorced. He’s been the child’s father for 8 years and change. Does he have to have the mother’s consent to adopt him still? Could the bio dad give up his rights to my fiance without the mother’s approval?”

He probably would need mother’s consent even if biological dad was willing to give up his parental rights to your fiance. In California where I practice, Family Code Section 8604 states in relevant part: “(a) Except as provided in subdivision (b), a child having a presumed father under Section 7611 may not be adopted without the consent of the child’s birth parents, if living.” Section (b) goes on to say, ” If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption . . . .” Additionally section 8605 provides: “A child not having a presumed father under Section 7611 may not be adopted without the consent of the child’s mother, if living.”

So as far as I can tell, if this was in California all known birth parents would have to give consent, although a parent through deed can lose their ability to block an adoption if they are deemed to have abandoned the child. Even in that scenario he would still need birth mother’s consent to adopt the child. Laws vary from state to state concerning consent requirements, so check with a local attorney who handles adoptions.

Ultimately, birth mother is likely in a position where she can just shut fiance out of kid’s life. If he has been the main male influence and father figure for this child, he might try to remain as active in the child’s life as he can for the child’s sake. Your fiance should realize that he likely has no absolute rights, and birth mother has all the control. If he wants to maintain a relationship with te child, he’s going to have to give great deference to birth mother. Easy for me to say, and difficult in its application for the person who would need to entirely set aside his ego in order to do what they think is best for the child.



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Author: House Attorney

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