In order to file a child custody suit in Texas, a party must have “standing.”  Standing is a jurisdictional requirement.  If someone files suit without standing, the case should be dismissed.  If a court enters an order when someone does not have standing, that order is void.  Not just anyone can file a child custody suit.  Under the Texas Family Code, the following people have standing to bring a child custody suit:

  1. A parent whose parental rights have not been terminated;
  2. A child, through a representative authorized by the court;
  3. A person with court-ordered visitation rights;
  4. A guardian of the child’s person or estate;
  5. A governmental entity (such as the Office of the Attorney General);
  6.  The Texas Department of Family and Protective Services (CPS);
  7. A licensed child-placing agency;
  8. A man who alleges he is the biological father of the child;
  9. A person (other than a foster parent) who has had actual care, control and possession of the child for at least six months;
  10. A person designated as the managing conservator in an affidavit of relinquishment of parental rights or who has been given consent to adopt the child;
  11. A person who resided with the child and a recently deceased parent for at least six months ending not more than 90 days before filing suit (commonly referred to as the “step-parent statute,” although the statue is not limited to step-parents);
  12. A foster parent who has had the child in his or her home for at least 12 months ending not more than 90 days before filing suit;
  13. A person who is related to the child by blood or adoption within the third degree of consanguinity (ie: brothers, sisters, nieces, nephews, aunts, uncles, grandparents and great grandparents) if the child’s parents are deceased, if the child’s present circumstances are a danger to the child’s physical or emotional health, or if the child’s parents consent; or
  14. A prospective adoptive parent, if the child’s parent or a pregnant woman has conferred standing to that person.

If a person does not fall into one of the above categories, that person cannot file a child custody suit.  Standing can be a complicated issue, and whether or not someone has standing under one of the above provisions is not always as clear cut as you might think.  If you are wondering if you can legally file a child custody suit, an experienced family law attorney will be able to look at the specific circumstances of your case and help you make that determination.

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At The Draper Law Firm, we love adoptions!  One of the adoptions we often see involves a step-parent adopting the biological child of his or her spouse.  There are a couple of questions I immediately ask when someone inquires about a step-parent adoption:  (1)  What is the status of the other biological parent? and (2) If that biological parent is alive and hasn’t had rights terminated already, will that parent voluntarily relinquish parental rights?

In order to proceed with a step-parent adoption, the biological parent who is not involved must either be deceased, have had his or her rights terminated, or have his or her rights terminated prior to the step-parent adoption.  We generally do the termination and adoption in one proceeding, and they are often both handled in the same final  hearing.  The process is extremely easy if the biological parent will sign an affidavit voluntarily relinquishing parental rights.  (This post will not go into the process to terminate if that does not happen.)

In addition to terminating the biological parent’s rights, the step-parent will need to complete a criminal background check.  This is now generally done electronically, and the results come back quite quickly.  The step-parent will also need to complete an adoption home study.  The home study involves an added expense outside of attorney’s fees.  For the home study, the step-parent, spouse and child will meet with the evaluator and have a home visit.  They will also provide collateral references in support of the adoption.

Sometimes an attorney ad litem is appointed to represent the child in the case.  The court has the discretion to waive the ad litem if the judge feels the child’s best interests are adequately protected by the parties.  We have always requested that the court waive the requirement of an ad litem for the child in step-parent adoption cases, and that request has always been granted.

Once the background check and home study are complete, we prepare a final order and go finalize the adoption.   The child comes to the final hearing, and the judge will always participate in taking pictures with the family to help celebrate the occasion.

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Many people ask how to terminate the rights of a parent or how to proceed with a step-parent adoption. Before a step-parent can adopt a child, the biological parent’s rights must be terminated. It is important to remember that a biological parent should have the opportunity to build a relationship with their child and a court may give a parent that opportunity even after a petition for termination is filed. There are many steps involved with terminating a parent’s legal right to their child, including requirements that the parent be personally served and have the opportunity to respond.

The Texas Family Code sets out specific grounds for terminating a parent-child relationship. A parent’s rights can be terminated for a number of reasons, including leaving the child in the care of another for at least six months without adequate support. Rights may also be terminated if a parent knowingly allowed the child to be somewhere which endangered the physical or emotional well-being of the child. The most common avenue for termination we see in step-parent adoptions is for the biological parent to sign an affidavit of relinquishment of parental rights.  This is not a complete list of the grounds for termination.

In order to proceed with the adoption, the step-parent needs to complete a background check.  This involves going to the closest facility that does fingerprint background checks for DPS.  The results usually come back within a week or two.  The family will also need to participate in an adoption evaluation prior to finalizing the step-parent adoption.  Contact The Draper Law Firm, PC if you would like more information on step-parent adoption or terminating a parent’s rights.

(Blog post by Soheyla Dixon and Holly Draper)

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Many times a child has little to no relationship with a biological parent but has a wonderful relationship with a step-parent. In those situations, many families consider having the step-parent adopt the child.  In order to complete a step-parent adoption, the rights of the biological parent must first be terminated.  (This can be done in the same proceeding as the adoption.)

If the bio parent is agreeable to the termination, this is a very easy and quick process. The relinquishing bio parent must simply sign an affidavit of relinquishment of parental rights, to be filed with the petition for termination and step-parent adoption.  When there is a step-parent ready to step in to adopt the child, the court will almost universally approve the termination.  With most adoptions, a social study and a guardian ad litem or amicus attorney (an attorney appointed to represent the best interests of the child) are required.  However, with a step-parent adoption, you may ask the court to waive one or both of these requirements.  The step-parent must still complete a background check.  Once all paperwork has been completed, the non-terminating bio parent, the step-parent and the child will appear in court to finalize the adoption with a short prove-up hearing.

After the terminating bio parent signs an affidavit of relinquishment of parental rights, that parent is generally no longer entitled to notice of anything that goes on in the proceeding.  That parent will not receive any order of termination or adoption or ever even get confirmation that it happened.

If the bio parent is not willing to voluntarily terminate his or her parental rights, the process can be much more difficult.  The parent who is attempting to terminate the other parent’s rights could have a long, uphill battle trying to prove that the bio parent’s rights should be terminated.  The step-parent cannot adopt unless the court first finds that sufficient grounds exist to terminate the bio parent’s rights.

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I love adoptions!  They are one of my absolute favorite things in the world, and I am always so excited when I get to play some small role in adoptions.  Many people choose to adopt from foreign countries.  When that happens, the actual adoption takes place in the foreign country.  Sometimes that adoption involves a name change and sometimes it does not.

After a foreign adoption is finalized and a child moves with his or her new parents to the United States, it is common practice to register the foreign order of adoption here.  In Texas, the process is quite simple.  You file a Petition for Registration of Foreign Order of Adoption.  Attached to the petition are affidavits from both parents and copies of the birth certificate, foreign order of adoption, and proof of immigration status.  If the child’s name was not changed in the foreign adoption, the petition can include a request for a name change.  Then we submit an Order Recognizing Foreign Order of Adoption (and Name Change, if applicable).  Many courts will sign off on the Order without a hearing, so the process can often be completed without ever setting foot in a courtroom.

Once the Order is signed, the parents can send a certified copy to the Bureau of Vital Statistics to obtain a new birth certificate.  The parents should get several certified copies that can be used for obtaining a new passport, social security card, etc.

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