There are a number of ways you can adopt a child under Texas law. Here, learn about the differences between adoption and custody, who can adopt a child, termination of parental rights, and more.
In everyday life, many people may pitch in to help raise children. In fact, you may be able to think of many thoughtful caregivers, family members, religious leaders, and community mentors who have all helped raise a child you know.
However, under the law, a child may only have one legal set of parents. Adoption asks the court to make legal parents out of people who are not already biological parents of a child. Because a child may only have one official set of parents, adoption cases require the court to determine which parents will be best for the child. To help judges make this decision, the law requires a number of specific studies and reports to demonstrate the best interest of the child.
The specific requirements of adoption studies and reports can make adoption proceedings overwhelming for non-attorneys. This article is only meant to give a general overview of adoption and answer some common questions about this type of case. This article does not replace the legal advice necessary to adopt a child. Because the specific facts of each situation make each adoption case different, you should consult with an attorney about the facts of your case before attempting to file for adoption.
How is adoption different from gaining custody of a child?
Sometimes the court may use a Suit Affecting Parent Child Relationship (“SAPCR”) to give conservatorship (custody) of a child to someone who is not the child’s biological parent. Conservatorship can include a variety of different child-raising rights similar to the rights that a biological parent generally has when the child is born.
However, conservator rights are different from parental rights because they only include the rights that a judge lists in the court order.
Because of this, adopted children have greater, automatic inheritance rights than children who have simply been raised by a legal conservator.
Through adoption, a child becomes the legal child of the adoptive parents for all purposes including inheritance.
This means that if the adoptive parent dies without a will, then the adopted child would generally automatically inherit the same as any natural-born children. This also means that any inheritance that other people leave to the adoptive parents’ “children” would automatically include the adoptive child. This is not the case in a conservator-child relationship which requires a will to transfer property to the child after death.
Read Texas Family Code 162.017 for a full list of the effects of adoption creating the parent-child relationship.
Who can ask to adopt a child?
Generally, an adult is able to ask the court to adopt a child who may be adopted. Whether or not a child may be able to be adopted depends on the circumstances of the case. Explanations of a few common scenarios are below.
Scenario A: Both parents have or will have their biological rights terminated.
In Texas, a child can be adopted if each living parent of the child has had their rights terminated or a suit to terminate their biological rights is filed with the adoption lawsuit.
Termination of parental rights may happen either voluntarily or involuntarily and is discussed more thoroughly in the “termination” section of this document.
Scenario B: Stepparent Adoption
Stepparents can ask to adopt children without terminating the rights of both biological parents. In stepparent adoptions, a biological parent may keep their parental rights if they are married to the stepparent seeking adoption. In this situation, the parental rights of the other parent must still be terminated to make room for the adoptive parent. Read Stepparent Adoption in Texas to learn more.
Families who want to share parenting responsibilities between both biological parents and stepparents might consider filing a SAPCR instead of an adoption.
Scenario C: Parental Consent
A child can be adopted by an adult if the child is at least two years old and
- One parent has had their parental rights terminated, and the remaining, non-terminated parent consents to adoption by either:
- The child’s former stepparent,
- Managing conservator, or
- A person who has had actual care, possession, and control of the child for at least six months before filing for adoption.
Scenario D: No Parental Consent
Without parental consent, a child may be adopted by an adult, if the child is at least two years old and
- One parent has had their parental rights terminated, and
- The person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year before filing for adoption.
Texas Family Code 162.001(b)(4).
It is prohibited for DFPS, adoption contractors, or any licensed adoption agency to have a policy restricting adoption based on the age of the prospective adoptive parent or on the age difference between the prospective adoptive parent and the child. Texas Family Code 162.604. The only factors that may be considered relating to age are the health and expected lifespan of each prospective adoptive parent when determining the best interest of a child.
When can a child be adopted?
A child can be adopted after living with the petitioner for six months, but this requirement can be waived if the court finds that it is in the best interest of the child.
Who needs to agree to the adoption?
Who agrees to the adoption will depend on the facts of the case. Below are some scenarios.
- If a married person asks to adopt a child, that person’s spouse must join the petition for adoption.
- If a child is at least 12 years old, the child must consent to the adoption unless the court waives this requirement due to it being in the child’s best interest.
- If the child has a managing conservator, their written consent is required unless the managing conservator is also the one bringing the adoption suit or the court waives this requirement because consent has been refused or revoked without good cause.
Does adoption require termination of parental rights?
Because children may only have one legal set of parents, adoption requires that the parental rights of the biological parent(s) be terminated to make room for the exclusive rights of the new, adoptive parent(s). A parent’s rights may be terminated either voluntarily or involuntarily. Read Terminating Parental Rights in Texas to learn more.
Can I parental rights be voluntarily terminated?
Voluntary termination (relinquishment) of parental rights is an option under Texas Family Code 161.103. For instance, a parent can bring a suit to terminate their own parental rights.
However, in most cases, the court will be required to rule that the voluntary termination is in the best interest of the child.
The court is also able to voluntarily terminate parental rights if the parent has signed an affidavit of voluntary relinquishment or an alleged father signed an affidavit waiving interest. Even if these documents are done correctly, the court will still have to order the termination of parental rights, the document alone is not enough.
The court system is still involved.
What if the parents do not want to voluntarily terminate their parental rights?
If the child's legal parents do not wish to voluntarily terminate their parental rights, you can pursue involuntary termination. Involuntary termination must meet a high legal standard. Generally, courts are required to find by clear and convincing evidence that termination is in the best interest of the child and is supported by one of the stated legal reasons for termination of parental rights.
A parent's rights can be involuntarily terminated will fall into the following categories:
- The parent abandoned or did not support the child(ren);
- The parent endangered the child(ren);
- The parent engaged in criminal conduct; or
- The parent is otherwise unfit.
Texas Family Code 161.001-161.007 contains more information on the different reasons a parent’s rights can be involuntarily terminated.
What is the best interest of the child legal standard?
The best interest of the child is a common legal standard that judges use in cases that involve children.
To decide what is in the “best interest of the child” the court will usually consider, among other factors:
- The child’s emotional and physical needs,
- The parental abilities of potential caregivers,
- Future plans for the child,
- Home stability,
- Parenting acts or omissions that suggest the parent-child relationship is unhealthy,
- Excuses for any acts or omissions of the parent, and
- The child’s desires (sometimes).
Read Best Interest of the Child Standard for a full explanation of this guiding standard.
What should I expect in adoption proceedings?
Adoption cases require a number of studies and reports.
Generally, these reports and studies help show the court that transferring parental rights to the adoptive parents is best for the child. At the same time, reports must be provided to the adoptive parents to make sure that they have the information they need to properly care for their adopted child.
These studies generally include:
- Personal interviews of the adoptive parents and the child,
- Evaluations of home environments where the child might live,
- Observations of the child in different home environments,
- Assessments of the child’s relationship with the involved adults, and
- Consideration of criminal history reports for anyone living in the homes that are being studied.
Unless the adoptive parents are the child’s grandparent, aunt, uncle, or stepparent, additional reports must also be made to make sure the adoptive parents have the information they need to properly care for the child.
If a stepparent is adopting their spouse's child in an uncontested case, the court may waive adoption evaluations after reviewing completed criminal history reports of the prospective parent. Texas Family Code 107.153(a-1).
These reports include health, social, educational, and genetic history information about the child. Read Texas Family Code 162.005-161.0086 for more information about the types of studies conducted during adoption proceedings.
How does the court make its final decision?
Generally, the court’s main concern in making its final decision is doing what is best for the child. The judge will make this decision after hearing the testimony of involved parties, examining the required reports and studies, and then applying the law that applies to your particular situation.
Because the specific facts of each situation make each adoption case different, you should consult with an attorney about the facts of your case before attempting to file for adoption.
If you need help finding a lawyer, you can:
This article answers frequently asked questions about stepparent adoption in Texas.
This handbook explains family courts and other family law issues, with a focus on Harris County.
This article explains the “best interest of the child” standard, how it plays a role in cases with children, and how it is used by courts.
This article contains information on terminating parental rights.
Learn about Texas custody orders.
This article answers frequently asked questions about accessing adoption records in Texas.