The biological father has not been around in 3 years but my husband has been supporting my son for 5 years and wants to adopt him. The non custodial parent is supposed to pay child support but has not made a payment since April and was $900 behind then!! He is on the birth certificate but never legitimized my son!!
Divorce / Separation Lawyer
You hire an experienced adoption lawyer. Whether his rights can be terminated depend in large part of how long he goes without paying support.
I recommend that you meet with an attorney experienced in stepparent adoption to discuss your options. It certainly sounds like you may have a case to proceed with an adoption, but an attorney can review all the facts and risks with you.
If you'd like to talk with me about your case, feel free to contact me. I offer free initial consultations to discuss the adoption process. You can find a listing of other experienced adoption attorneys at the website for the Georgia Council of Adoption Lawyers. If cost is an issue, you may also want to contact the Atlanta Legal Aid Society's adoption program. Even though you are outside their service area, they may be able to recommend an attorney in your area who could assist you at low or now cost.
The information contained in this response is not, nor is it intended to be, legal advice. Neither Neal & Wright LLC nor its attorneys have created an attorney-client relationship with you by responding to your question. The attorneys of Neal & Wright LLC ethically cannot agree to represent you until confirming that there are no conflicts of interest and obtaining information about the specific facts of your case.
If you are able to show that the biological father has either had no significant contact with the child for one year or has paid no support for one year, you can file a petition for a stepparent adoption without first having to terminate the father's parental rights. Even though he has not legitimated the child, he still has some rights to be terminated, and this can be done by motion within the adoption case. If he is not going to fight you (and the fact that the adoption will terminate his child support obligation gives him incentive not to), the case should be straightforward.
We have handled numerous adoptions in Walton County and would be glad to meet with you for a free consultation to go over all of the facts and options.
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Divorce / Separation Lawyer
All of these folks agreed that you should hire an experienced adoption lawyer for this, and I do, too, but what you wanted to know versus what you should do are different things. First, ask if he'd be willing to surrender his rights to your husband for adoption. The Georgia Code has a required form, and I also describe it on my website at www.merlinusmonroe.com. He probably won't do it voluntary, so then you would have to pursue custody modification along with a judicial termination of his rights, and it sounds to me like you would get your wish as long as it is presented right. Again - hire an attorney experienced with these things.
Good luck to you!
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