January 11, 2013

Georgia Step Parent Adoption

In Georgia, blended families are becoming more and more prevalent. As a result, many Georgia couples wonder: “May I adopt my step children? If so, how?” These couples will be glad to know that in Georgia, one spouse may indeed adopt the child of his or her spouse. This process is commonly referred to as step parent adoption.

There are two different circumstances under which a child may be adopted by his or her step parent, and the process that the adopting parent must undergo differs according to these circumstances. If the child’s other biological parent is no longer living, the child may be adopted by the spouse of his or her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). For example, if the step father wishes to adopt his step child, and the child’s biological father is no longer living, the step father may adopt the child if the mother (the step father’s wife) gives consent.

However, in cases where both of the child’s biological parents are still living, the requirements for step parent adoption are different. If both of the child’s biological parents are still living, but they are not married to each other, the child may be adopted by his or her step parent only if the other parent voluntarily surrenders his or her parental rights in writing and the other parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1). An example of this situation would be as follows: If a step mother wishes to adopt her step child, and the child’s biological mother is still living, the biological mother must voluntarily surrender her parental rights in writing, and the child’s father (the step mother’s husband) must give consent. If the biological parent refuses to surrender his or her parental rights, the court presiding over the matter will hold a hearing to determine whether the adoption is in the best interests of the child.

One additional requirement that applies to either situation is that if the child involved is fourteen years old or over, that child must also consent to the adoption in writing. O.C.G.A. §19-8-6(b).

If you are a step parent, and you wish to adopt your step child, it will be necessary for you to file a Petition for Stepparent Adoption in order to begin the process. In order to ensure that your petition is effective, and that you are ultimately successful, we advise you to seek the help of an experienced Georgia family law attorney.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

November 14, 2012

Adoption and Child Custody in Georgia

The Supreme Court recently decided a custody case involving adoptive parents. In Hastings v. Hastings, S12F0873, the Husband was the biological father to both of the children at issue in the case. However, the Wife was the biological mother of one child and the adoptive mother of the other child. The Wife adopted the child just after the child’s birth (the biological mother was an ex-girlfriend of the Husband). The Trial Court heard the issues of child support and child custody, and found that the Wife should have primary custody of both children and denied a request to split the children up, finding that this would cause them emotional harm. The Husband filed an appeal on the Court’s ruling, challenging the Court’s giving the Wife primary custody of the adoptive child.

The Supreme Court denied the appeal, holding that, again, the Court must consider the best interests of the child when determining custody. The Supreme Court further stated that the Wife’s adoption “creates the relationship of parent and child...as if the adopted individual were a child of biological issue...” in accordance with O.C.G.A. § 19-8-19(a)(2).

This case illustrates that the Court considers first and foremost the best interests of the child when determining custody, and the importance they place on an adoptive relationship. If you have questions regarding your custody case, contact one of our experienced family law attorneys.

By Elizabeth Doak, Associate, Meriwether & Tharp, LLC

July 2, 2012

Adult Adoption in Georgia

When you think of adoption, you likely think of a couple adopting a newborn baby or young child who has been abandoned by his/her parents, or possibly a stepparent adopting a stepchild. Did you know adults could be adopted in certain circumstances as well? In Georgia, there is actually a statute that covers the issue of adult adoption. According to OCGA §19-8-21, “[a]dult persons may be adopted on giving written consent to the adoption…After examining each petitioner and the adult sought to be adopted, the court, if satisfied that there is no reason why the adoption should not be granted, shall enter a decree of adoption and, if requested, shall change the name of the adopted adult. Thereafter, the relation between each petitioner and the adopted adult shall be, as to their legal rights and liabilities, the relation of parent and child.” Thus, the end result is no different than adopting a child.

This issue recently came up in a Florida case. According to an article in the Daily News, a Florida man with two biological children filed paperwork to legally adopt his 42 year old girlfriend, which would entitle her to a third of the assets in a trust fund set up for his children. Gross! Man legally adopts 42-yead old girlfriend, by Nina Mandell, NYDailyNews.com, February 1, 2012. Not coincidentally, this man is being sued by the parents of a young man killed in a car crash, and these parents, as well as the judge, believe that he has filed the adoption paperwork to shield his assets from a possible judgment against him.

If this case were in Georgia, the court would look closely at the allegation that the petitioner was merely seeking to shield assets in making its decision to grant the adoption. If proven, this would likely be a reason the adoption should not be granted under the statute, particularly if there was no valid reason for the adoption in the first place.

February 3, 2012

Grandparent visitation rights in Georgia

The Supreme Court of Georgia recently heard an interesting case regarding visitation rights for grandparents whose son’s parental rights had been terminated. Kunz v. Bailey, S11G0867 (2012). In that case, the child’s stepfather adopted the child after the biological father’s rights were terminated. Id. After being denied access to the child, the paternal grandparents (parents of the biological father whose rights were terminated), petitioned for visitation rights with the child. Id. Under Georgia law, a petition for grandparent visitation is not authorized where “the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b). Therefore, the child’s mother and adoptive father (“Parents”) moved to dismiss the action and, after the motion was denied, filed a direct appeal to the Court of Appeals of Georgia. Id. at 2. The Court of Appeals reversed the trial court’s denial of the Parents’ motion to dismiss, determining that the term “parent” in the grandparent visitation statute “was not limited to natural parents, but included adoptive parents as well.” Id.

The grandparents then filed a petition for certiorari with the Supreme Court of Georgia to determine whether the language of the grandparent visitation statute cited above includes adoptive parents. Id. at 3. The Supreme Court of Georgia held that the statute did include adoptive parents. Any other interpretation would “allow grandparents, by court action, to intrude upon the ‘constitutionally protected interest of parents to raise their children.'” Id. at 4, quoting Brooks v. Parkerson, 265 Ga. 189, 191 (1995). In addition, there was no limiting language in the statute that distinguished between any class of parents. Kunz, at 4.

The Court also agreed that the trial court’s denial of the original motion to dismiss was error. Since the adoptive father was the father of the child at the time the grandparent visitation was filed and the child was living with both parents, there was no basis for an original action for visitation by the grandparents. Id. at 5. Thus, dismissal of the grandparents’ visitation petition “was the proper outcome.” Id.

February 25, 2011

Grandparent visitation denied by Georgia Court of Appeals

The Georgia Court of Appeals recently denied paternal grandparent visitation where the biological father had given up his parental rights. In Bailey v. Kunz, the mother was married to and had a child with the biological father. Bailey v. Kunz, A10A1809 (2011). After the biological parents divorced, the mother remarried, the biological father surrendered his parental rights, and the mother’s new husband (“adoptive father” and, with the mother, “parents”) adopted the child. Id. A dispute arose between the parents of the child (the mother and the adoptive father) and the parents of the biological father (“biological grandparents”) over visitation with the child. The parents moved to dismiss the biological grandparents’ petition for visitation “arguing that such a petition was not authorized because [they] were the legal parents and lived together with the child.” Id. After the trial court denied the petition, the parents appealed and the Georgia Court of Appeals reversed the trial court’s denial of the motion to dismiss.

The statute governing grandparent visitation states: “Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . . or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b).

According to the Georgia Court of Appeals, the adoptive father is a “parent” for purposes of the grandparent visitation statute because, in the adoption statute, a “parent” includes the legal father of the child. Id. at 4. It would be inconsistent to treat him as a parent in one statute but not in another. Applying this logic in this case, the parents of the minor child are not separated and the child is living with both parents, making the petition for grandparent visitation unauthorized.

May 18, 2009

Adoption - Georgia Case Law Update

On March 5, 2009, the Georgia Court of Appeals reversed the trial court’s grant of a grandmother’s adoption petition in Owen v. Watts (A08A2012), something the appellate courts rarely do. The child had been removed from her home with her mother and grandmother and placed with a foster family. The grandmother then filed a petition to adopt the child and the foster parents, who had previously filed a petition to adopt the child, intervened in that action. The trial court granted the grandmother’s petition to adopt the child and the Court of Appeals reversed, finding that “there was no record evidence that supported a finding that the adoption was in the best interest of the child.” The grandmother’s testimony that she loved the child, had taken her to doctor’s appointments and had an appropriate house for the child to live in was held to be insufficient to meet this standard.

The Court of Appeals acknowledged that reversing the grant of adoption is something that the appellate courts rarely do, but rested its decision on the “plethora of evidence…from which the trial court could have concluded that an adoption by Watts was not in [the child’s] best interest.”

December 10, 2008

Stepparent Adoption in Georgia

A child may be adopted by the spouse of his/her parent in Georgia regardless of whether the child’s other parent is still living, but there are different requirements for each situation. If the child has only one legal parent still living, the child may be adopted by the spouse of his/her living parent only if that parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(2). If both of the child’s legal parents are living, but not married to each other, the child may be adopted by the spouse of either parent only if the other parent voluntarily surrenders his/her parental rights in writing and the other parent consents in writing to the adoption. O.C.G.A. §19-8-6(a)(1). In either situation, a child fourteen years of age or older must consent in writing to his or her adoption. O.C.G.A. §19-8-6(b).

If the party whose rights the stepparent seeks to terminate refuses to surrender his/her rights, the Court will hold a hearing to determine whether the adoption is in the best interests of the child. If that parent cannot be found, the stepparent must exercise due diligence to try to locate the parent to provide him/her with sufficient notice under Georgia law. The biological/legal parent must receive adequate notice of the proceedings before the Court will grant the adoption and, in our experience as divorce attorneys in Atlanta, the Courts are very strict on this issue.

Before a stepparent adoption can be finalized, the stepparent must undergo a criminal background check through the Georgia Crime Information Center. The Department of Human Resources, or other representative appointed by the Court, will also become involved to verify the allegations in the Petition for Stepparent Adoption. This representative routinely interviews the stepparent and parent and may even visit the home where the child is living.