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.

Paternity

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Certain child custody cases involve the appointment of an amicus attorney.  This is an attorney appointed by the court to help protect a child’s best interest.  The amicus attorney is providing legal services to the court – not the child – and therefore there is no attorney-client relationship between the amicus and the child.

An amicus attorney is not bound by a child’s desires and can disclose confidential communications with the child to the court to help the court determine the child’s best interest.

An amicus attorney can be requested by a party, but the court can also choose to appoint an amicus on its own.  Most of the time, the parties will bear the cost of the amicus.  Occasionally, the court will have the county pick up the expense, if it deems the appointment is necessary but cost-prohibitive to the parties.

An amicus attorney may be appointed in any case where the court needs to determine what is in the best interest of the child.  Appointment is most common in termination suits and parentage suits, in certain situations.

Child Custody

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In Texas, there are two ways a parent can voluntarily relinquish parental rights.  One avenue for terminating parental rights is for the parent(s) to sign an affidavit of relinquishment of parental rights.  An affidavit of voluntary relinquishment must contain some very specific information about the child, the parents and the guardians of the child, a statement that the parent relinquishing her rights has been informed about her parental rights and duties, a statement that the affidavit is either irrevocable for a stated period of time or revocable, and a statement that designates someone else as the managing conservator of the child.  The statement may also include a waiver of service in a termination suit.  The affidavit cannot contain any provision for post-termination contact between the parent and the child.  The affidavit must be signed before a notary and witnessed by two credible, disinterested witnesses.

The signing of an affidavit of relinquishment of parental rights does not immediately terminate the parent-child relationship.  Instead, it provides a basis for the court to enter a judgment of termination.   The court must also find that termination is in the best interest of the child, even with an affidavit relinquishing parental rights, in order to terminate.

Another avenue to waive parental rights is for a man to sign an affidavit waiving interest in the child.  An affidavit waiving interest is irrevocable, and it can be signed before or after the child’s birth.  This may be used when it is unclear whether or not a particular man is the father.  Again, the signing of the affidavit does not automatically terminate any parental rights, but it can be used in termination proceedings.

In either situation, it is advisable to have the affidavit prepared by an attorney to make sure all the paperwork meets all legal requirements.

Termination of Parental Rights

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