The statutory requirement is 4 months. The pertent statute is set forth below:
36-1-102. Part definitions.
As used in this part, unless the context otherwise requires:
(1) (A) For purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, "abandonment" means that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) or guardian(s) as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child's situation prevented reasonable efforts from being made prior to the child's removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or guardian(s) have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date;
(iii) A biological or legal father has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child's mother during the four (4) months immediately preceding the birth of the child; provided, that in no instance shall a final order terminating the parental rights of a parent as determined pursuant to this subdivision (iii) be entered until at least thirty (30) days have elapsed since the date of the child's birth;
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child; or
(v) The child, as a newborn infant aged seventy-two (72) hours or less, was voluntarily left at a facility by such infant's mother pursuant to § 68-11-255; and, for a period of thirty (30) days after the date of voluntary delivery, the mother failed to visit or seek contact with the infant; and, for a period of thirty (30) days after notice was given under § 36-1-142(e), and no less than ninety (90) days cumulatively, the mother failed to seek contact with the infant through the department or to revoke her voluntary delivery of the infant;
(B) For purposes of this subdivision (1), "token support" means that the support, under the circumstances of the individual case, is insignificant given the parent's means;
(C) For purposes of this subdivision (1), "token
Mr. Miller is correct; the critical time period is four months.
If the father fails to provide support for four months OR if the father only provides token support for four months OR if the father fails to visit the child for months OR if the father only makes token visits for a four-month period, you will have "grounds" to terminate the father's parental rights. Having "grounds" to terminate the father's rights means that you cannot prove one of the reasons that the law says is sufficient to terminate a parent's rights. Showing the Court that you have "grounds" to terminate the father's rights is one of the two things that you will have to do to be successful.
The other thing that you will have to show is that it is in the child's "best interests" to have her father's parental rights terminated and to be adopted by her stepfather. If the stepfather has, in effect, served as the child's father throughout all or most of the child's life, it should not be difficult for a skillful lawyer to prove that terminating the father's parental rights is in the child's "best interests".
You will be simultaneously terminating the father's parental rights while you have the child adopted by the stepfather, all in the same lawsuit. This is not something that you can do your self. You will need to have the help of a skilled lawyer who has done this type of work previously. If you do employ a skillful lawyer and the facts are as you suggest, you should be successful in terminating father's parental rights and having the child adopted by your husband.