Here, learn about the legal significance of stepparent adoption. The article also outlines the requirements, process, and costs involved in filing a stepparent adoption case in Texas, including termination of parental rights, where to file, and who can file the case.
Who can file a stepparent adoption case?
An adult who is the stepparent of a child younger than 18 can file a stepparent adoption case. The child’s parent (the stepparent’s spouse) must join as a petitioner in the adoption case. See Texas Family Code 162.001(b)(2).
Is termination of parental rights required before a child can be adopted by his or her stepparent in Texas?
Yes. Stepparent adoptions in Texas require an order terminating parental rights between the child to be adopted and the parent of the child that is not the stepparent’s spouse. The stepparent’s spouse (the child’s other parent) will join as a petitioner in the adoption case and will not have their parental rights terminated.
Note: If the child needs an order of termination of parental rights before the child is eligible to be adopted, the courts allow the termination and adoption cases to be filed together as one case. The termination and adoption happen in the same court hearing. Talk with a family law lawyer about what is needed for your case.
Where do I file (turn in) a stepparent adoption case?
File the adoption case in either of the following courts in the county where the child lives or where the petitioners (the adults filing the adoption suit) live:
- District court, or
- Statutory county court with jurisdiction over family law cases.
Read the law on adoptions in Texas Family Code 103.001(b).
How do I start a stepparent adoption case?
There are two ways to start a stepparent adoption case, depending on whether a parent-child relationship exists between the child and the child’s other parent (that is not married to the stepparent):
- If the child’s other parent is alive and there is no court order of termination of parental rights between the child and the child’s other parent, file an Original Petition to Terminate Parent-Child Relationship and for Stepparent Adoption
- If the child’s other parent is deceased or there is a court order of termination of parental rights between the child and the child’s other parent, file an Original Petition for Adoption.
Note: TexasLawHelp.org does not provide stepparent adoption forms. Talk with a family law lawyer for help starting a stepparent adoption case.
Does it cost anything to file (turn in) an Original Petition for Termination and Adoption or an Original Petition for Adoption?
Yes. When you file for termination and adoption, or for adoption, you must usually pay a filing fee. The fee varies by county. Contact the district clerk’s office or the statutory county court with jurisdiction over family law cases in the court where you will file the adoption case to learn the fees.
If you don’t have enough money to pay the fees, you can ask a judge to waive the fees by completing and filing a Statement of Inability to Afford Payment of Court Costs. Read Court Fees and Fee Waivers.
Who is the “petitioner” in a stepparent adoption case?
A petitioner is a person who files, or opens, a lawsuit. In a stepparent adoption case, there are two petitioners:
- The child’s stepparent asking the court for the adoption order, and
- The stepparent’s spouse (the child’s parent whose rights will not be terminated).
Note: Even though the child’s parent who is married to the stepparent already has a parent-child relationship with the child, the law says that the stepparent’s spouse must also join in the adoption case as a petitioner.
Who is the “respondent” in a stepparent adoption case?
The child’s other parent (if living) whose parental rights will be terminated, and anyone with a court-ordered relationship with the child.
A respondent is a person who is served with a lawsuit. (Read about serving initial court papers in family law cases.)
If the termination is agreed upon, the parent whose rights will be terminated should sign an “Affidavit of Voluntary Relinquishment of Parental Rights.” This affidavit may state that no service is necessary. See Texas Family Code 161.103(c)(1).
Note: If the child’s only living parent (other than the stepparent’s spouse) has already had their rights terminated, then the child’s terminated parent is not listed as a respondent in the adoption case.
Do I have to go to court?
Yes. There may be a couple of times you have to go to court in a termination and adoption case.
The court may order an adoption evaluation to evaluate each party requesting the parent-child relationship’s termination or an adoption suit. But, if your case is uncontested and the prospective parent passes their criminal history check, the court may waive this requirement. See Texas Family Code 107.153 and Texas Family Code 162.003.
The court may also order the appointment of an attorney ad litem to represent the child(ren) in the case. See Texas Family Codes 107.003 and 107.004. You can ask the judge to order one or the other. Sometimes, though, the judge may order both. You must go to court to make these requests after the case is opened.
The petitioners and the child to be adopted (if the child is age 12 or older) must go to court for the adoption hearing.
Note: If you can show it would be “unduly difficult” for one of the joint petitioners to attend the court hearing, the court may waive the requirement for one of the petitioners to participate in the hearing if the other petitioner can attend. The court may also waive the requirement that a child age 12 years or older must attend if waiving the requirement is in the best interest of the child. Read the law here: Texas Family Code 162.014.
Does the child have to consent to the adoption?
If the child is 12 years of age or older, the child must consent to the adoption in writing or in court. Read the law here: Texas Family Code 162.010(c).
If the child is ten years of age or older and the adoption will change the child’s name, the child must consent to the name change in writing. See Texas Family Code 45.002(b).
Note: The court may waive this requirement if it is in the child's best interest.
What gets decided in a stepparent adoption case?
A stepparent adoption (or a combined termination and adoption case):
- Terminates the parent-child relationship between the child and the child’s other parent;
- Can terminate any other court-ordered relationship over the child;
- Makes the adopted child the son or daughter of the stepparent;
- Appoints the remaining parent and stepparent managing conservators of the child;
- Ends the child support obligation of the terminated parent, except that any child support arrears still must be paid;
- Creates the child’s right to inherit from the stepparent (Note: The termination and adoption can either cut off the child’s right to inherit from or through the adopted child’s other biological parent or the child’s right to inherit can remain in place.);
- Can change the adopted child’s name (if requested); and
- Allows the parents to get the child a new birth certificate by completing the Certificate of Adoption form and giving it to the district clerk. Read New Birth Certificate Based on Adoption.
Does the child have to live with the stepparent before the adoption is granted?
The law says that a child must live with the petitioner for at least six months before the court may grant an adoption. However, an exception applies if the petitioner asks the court to waive this requirement and finds that this requirement is not in the child’s best interest. Read the law in Texas Family Code 162.009.
Will the judge automatically approve (order) the stepparent adoption?
No. Adoption requires the court to make several findings:
First, the child must be eligible to be adopted by having the child’s other parent’s parental rights terminated (if the child’s other parent is alive and has not already had their parental rights terminated by court order). For more information on the termination of parental rights, read Terminating Parental Rights.
Next, a judge must find the requirements for adoption have been satisfied and filed with the court. Some of the requirements include (there may be others particular to your case or ordered by your court):
- An adoption evaluation. See Texas Family Code 107.153 and Texas Family Code 162.003. Some courts require the adoption evaluation to be completed by a person from the court’s list. Check with the court clerk if this is a local rule of your court. Note: The court may waive this if the case is uncontested and the petitioners criminal history reports have been reviewed by the court.
- The results of the criminal history reports of the petitioners.
- A signed and verified affidavit concerning compliance (or noncompliance if it doesn’t apply) with the Interstate Compact on the Placement of Children.
Depending on the circumstances of your case and the parties’ interests, the court may require the following:
- The appointment of an attorney ad litem, guardian ad litem, or amicus attorney. Read the law here: Texas Family Code 107.021.
- A child custody evaluation. Read the law here: Texas Family Code 107.103. Talk with a family law lawyer familiar with the court where you will file the adoption petition about the likelihood of this being required in your case.
- A CPS Central Registry Check.
- A certificate from the Texas Paternity Registry ensures no other man has claimed paternity of the child. Finally, the judge must find that the adoption is in the child’s best interest.
Will I be able to access the adoption records once the case is closed?
Most petitions for termination and adoption will include a request to seal the records after the case is closed. This means the records will not be available as public records.
You can ask the judge to order that the adoption records remain open to you, your spouse (the other petitioner), and also your attorney, if you have one.