by Rachel A. Elovitz
I am recently remarried, and my home is now complete – with a wonderful wife, five children, three dogs, two cats, and a snake. Our combined families function as one. The children treat each other like children typically do. They compete, bicker, fight, make up, play, laugh and cry – and they are truly best friends. My three daughters call their stepmother “Mom” and have (on multiple occasions) pleaded with her to adopt them.
The children’s biological mother has not bothered to contact them or to pay a dime for their support in years. They are so happy to now have a mother figure in their lives, and both my wife and I would like to see the bond between her and my daughters legally recognized. The problem is that the children’s biological mother will never consent to the adoption, and my understanding is that the law requires her consent.
It seems terribly unfair. My wife makes the children breakfast in the morning, brings them to school, and takes care of them when they are sick. She wipes their tears when they are sad and talks to them when they need someone to listen. She participates in all of their activities. She is a parent in every meaningful way, unlike the children’s biological mother. I fear that if, God forbid, something were to happen to me, my children would be pulled from their home, siblings, and remaining parent and forced to live with their biological mother, who has no means, desire, or ability to parent them.
Is the law governing stepparent adoptions really this restrictive? Do I need to get my ex-wife’s consent to the adoption, even though she has abandoned the children? Without her consent, will it be necessary to file a separate action to terminate her parental rights before a petition for adoption can be filed?
Dear DeKalb Dad:
Stepparent adoptions are governed by Official Code of Georgia Annotated § 19-8-6, which is not as restrictive as it may, at first glance, appear. Subsection 19-8-6(a)(1) does provide for a stepparent adoption in which the natural parent consents. However, that provision is applicable “except as otherwise authorized.”
Under O.C.G.A. § 19-8-10(b), a stepparent adoption is authorized in the absence of the biological parent’s surrender, if that parent “for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed…to communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or [significantly failed] to provide for the care and support of that child as required by law or judicial decree.”
The Georgia Court of Appeals looked closely at this provision in McCurry v Harding, 270 Ga. App. 416 (2004). In that case Christopher Murphy appealed the trial court’s decision to allow Wes Harding to adopt Mr. Murphy’s three children. The evidence was that Mr. Murphy had failed to have any meaningful contact with the children or to support them for at least a year. The children were referring to Harding as “Dad” and, the court found, had a “close, loving relationship” with him.
After determining that the adoption was in the children’s best interest, the court terminated Mr. Murphy’s parental rights and granted the adoption. Mr. McCurry appealed, arguing, in pertinent part, that the trial court erred in finding that Mr. Murphy’s consent was not a prerequisite to the adoption.
The appellate court looked to O.C.G.A. § 19-8-10(b), which it said did not require McCurry’s consent, because the trial court found that McCurry unjustifiably failed to communicate with or support his children for more than a year before Harding filed his petition.
McCurry also argued that the termination of his parental rights violated due process because he had no notice that the hearing was for that purpose. The appellate court noted that, as an initial matter, McCurry waived that argument by his failure to raise it in the below proceedings. More notably, the court found that even if McCurry had not waived that argument, he had “ample” notice that his parental rights were up for consideration in that he was personally served with a summons and petition for adoption.
The summons stated that if McCurry failed to answer the petition, a default judgment could be entered against him – a judgment on a petition that provided that McCurry’s consent to the adoption was unnecessary because he had failed to communicate or support the children for more than three years before the filing of the petition. “The grant of an adoption effectually relieves the natural parents of all parental rights and terminates all legal relationships between the adopted child and the natural parents.”
So no, you would not need to file an action to terminate the natural mother’s parental rights or to secure her consent prior to your new wife’s filing a petition for stepparent adoption in accordance with O.C.G.A. § 19-8-10(b). Whether the petition for adoption is granted will depend on your wife’s ability to demonstrate that the natural mother has in fact had no meaningful contact with the children or supported them for at least one year.
Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.
Your comments or questions for the Barrister are welcome. Please fill out and submit the comment field below.