I have had custody of my cousins child since he was born 10 months ago. The parents asked me to take custody because both the mother and child tested positive for drugs. The father is also currently incarcerated. They have not tried to contact me in anyway to see the child or to check on his well being. How do I need to go about adopting him. Do they have to relinquish parental rights or is there some way to petition the courts?
Family Law Attorney
You can file a Petition to terminate the parental rights of the parents and adopt the child yourself.
You will need to prove two things by "Clear and Convincing" evidence (evidence that demonstrates beyond a serious doubt) : (1) that there are "grounds" to terminate the parents, and, (2) that it is in the "best interests" of the child to have the parents parental rights terminated. The statute lists about eight different "grounds" to terminate a individuals Parental Rights. You have to prove at least one of them by "Clear and Convincing" evidence.
From what you say in your question, it appears that you do have good "grounds" to terminate the parents. You did not say how long the child has been with you, but I am assuming that it is some significant period of time. Not communicating with the child for four months constitutes "grounds". Not contributing financially to the child's care for four months constitutes "grounds". Committing a crime after losing custody of the child may constitute "grounds". Using illicit drugs during pregnancy constitutes "grounds" and may also constitute "severe child abuse" under a special statute. Committing "severe child abuse" is certainly "grounds" to terminate Parental Rights.
Then, it should be relatively easy for you to prove that it is in the child's "best interest" to have the parental rights terminated. If mother is still on drugs, and is not doing anything to rehabilitate herself and if the father is in the penitentiary, more than likely the Court is going to take that it is in the child's "best interest" to stay with a clean and sober, and law-abiding individual who has served as the child's parent for virtually all the child's life.
Now, it may be that the parents would just surrender their parental rights to you so that you could go ahead and adopt the child. But, my experience is that many people will not take any action to nurture their relationship with the child until faced with the prospect that they cannot have a relationship with the child — like when their parental rights are terminated. Then, suddenly, they oh so desperately want to have a relationship with their child.
So, this is the part that your lawyer will probably rely on your input on: if you think that the parents actually would relinquish their parental rights to you, it would make it easier and faster and cheaper for you to have them voluntarily relinquished their parental rights and then you adopt the child.
On the other hand, if you think that being asked if they are willing to relinquish their parental rights will spark them to, finally, take some action to act like the child's parents, then giving them the warning by asking them to relinquish their parental rights, might make your ultimate objective more difficult.Before you could file your petition to terminate their parental rights, they might take some action, finally, that would make the termination of their parental rights more difficult for you. Your lawyer will probably rely upon your knowledge of the parents and what they are likely to do.
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