What is an Intrafamily Adoption?

Lawyers are often asked questions about legal terms. One question that comes up often is, “What is an intrafamily adoption?”. Since this is a question on many people’s minds, I decided to provide an answer.

While most adoptions involve non-related individuals, intrafamily adoption refers to the process of adopting a child by a close relative or stepparent. This type of adoption can offer many benefits, including preserving family ties and providing a stable and loving home for a child in need.

However, intrafamily adoptions also come with their own unique set of challenges and legal complexities that require careful consideration. In this blog post, we will explore the concept of intrafamily adoption, its benefits and challenges, and what to expect from the process.

Who Qualifies for an Intrafamily Adoption?

The legislature defines the classes of relatives that qualify for intrafamily adoptions. See the following https://law.justia.com/codes/louisiana/2015/code-childrenscode/chc-1243/:

Title XII. Adoption of Children

CHAPTER 11. INTRAFAMILY ADOPTIONS

Art. 1243. Persons who may petition for intrafamily adoption

A. A stepparent, step-grandparent, great-grandparent, grandparent, aunt, great aunt, uncle, great uncle, sibling, or first cousin may petition to adopt a child if all of the following elements are met:

(1) The petitioner is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights.

(2) The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner.

(3) The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.

B. When the spouse of the stepparent or one joint petitioner dies after the petition has been filed, the adoption proceedings may continue as though the survivor was a single original petitioner.

C. For purposes of this Chapter “parent recognized as having parental rights” includes not only an individual enumerated in Article 1193, but also:

(1) A father who has formally acknowledged the child with the written concurrence of the child’s mother.

(2) A father whose name or signature appears on the child’s birth certificate as the child’s father.

(3) A father, if a court of competent jurisdiction has rendered a judgment establishing his paternity of the child.

Does the Biological Parent have to Agree?

No, a biological parent does not have to agree to an intrafamily adoption, but it will make the adoption easier. See the following statute concerning the consent of biological parents as it pertains to intrafamily adoption:

Title XII. Adoption of Children

CHAPTER 11. INTRAFAMILY ADOPTIONS

Art. 1244. Consent of parent

A. Except as otherwise provided herein, any parent may execute an authentic act consenting to the adoption of his child in an intrafamily adoption, including a waiver of service for any subsequent proceeding.

B. If the parent of a child born of marriage is married to the stepparent petitioner and executes an authentic act of consent, he need not join in the petition nor be served with a copy thereof.

C. The parent of a child born outside of marriage who is married to the petitioning spouse shall join in the petition.

D. Repealed by Acts 1999, No. 1062, §5, eff. Jan. 1, 2000.

Acts 1991, No. 235, §12, eff. Jan. 1, 1992; Acts 1992, No. 705, §1, eff. July 6, 1992; Acts 1993, No. 634, §1, eff. June 15, 1993; Acts 1997, No. 256, §1; Acts 1999, No. 1062, §§4, 5, eff. Jan. 1, 2000; Acts 2004, No. 26, §3.

Art. 1245. Parental consent not necessary

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.

B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:

(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.

(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:

(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.

(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Acts 1991, No. 235, §12, eff. Jan. 1, 1992; Acts 1997, No. 256, §1; Acts 1999, No. 1062, §4, eff. Jan. 1, 2000.

What is the Primary Consideration in Granting an Intrafamily Adoption?

Just because you meet all the requirements for an intrafamily adoption does not automatically mean you will be granted the adoption. Courts are required to determine the “best interest of the child” in their decision to grant an adoption. See the following excerpt from a 1st. circuit court of appeals case.

The primary consideration in adoption proceedings is whether the adoption is in the best interests of the child. In re Miller, 95-1051 at 6, 665 So.2d at 777.

In re Miller, 95-1051 at 6, 665 So.2d at 777. In cases where the stepparent seeking adoption is married to the parent who has been granted sole custody of the child, there is a rebuttable presumption that the adoption is in the best interest of the child. La. Ch.C. art. 1255(B). https://caselaw.findlaw.com/la-court-of-appeal/1113323.html

What are some Factors in Determining “Best Interest of the Child” in Intrafamily Adoption?

To determine the best interest of a child in intrafamily adoption, courts will often look at the relationship of the child with the adopting relative. The following is an excerpt from a case involving intrafamily adoption:

It is not enough to examine the love and home environment provided by the petitioner/stepparent. The court must also examine the depth of closeness of the child’s ties with the non-custodial natural parent and the effect that the loss of this relationship would have on the child.

Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent.

In re J.A.B., 04-1160 at 4, 884 So.2d at 680.

Intrafamily adoptions can become complicated if you decide to adopt and wish to seek an attorney to assist you; please consider Sonja; she has helped many clients navigate the adoption procedure successfully.

Sonja Bradley, your Family Law Attorney serving Hammond Louisiana, Ponchatoula Louisiana, Livingston Louisiana, Albany Louisiana, Walker Louisiana, and Denham Springs, Louisiana, and surrounding areas.

Louisiana’s New Car-Seat Law Goes into effect on August 1, 2019. What’s Different?

Governor John Bel Edwards signed a new car-seat law that will save lives. This bill requires better restraint of children while traveling in vehicles. After lawmakers examined accident statistics and the resulting injuries and deaths of children in vehicular accidents, they decided to take steps to update the law concerning child restraint.

The current law has been in place since 1984 and updated once in 2009. The new law will go into effect on August 1, 2019, and is based on the American Academy of Pediatrics.

The new law, based on standards adopted by the American Academy of Pediatrics, takes effect Aug. 1 and is intended to put children in car seats designed for individual weights and heights. In general, the guidelines require that:

Children under 2 must ride in rear-facing child safety seats;
Children ages 2-4 must ride in a forward-facing seat with an internal harness if they have outgrown a rear-facing seat;
Children ages 4-9 must ride in a booster seat secured with a lap/shoulder belt; and
Children ages 9-12 can ride without a booster seat if their knees bend over the front edge of the seat, their back is against the seat back and the seat belt crosses their chest and not their neck.

Click this link for more detailed information from http://www.lsp.org/pdf/child_passenger_seat.pdf

Also, you can have a free car seat inspection and installation at sites throughout the state, a list of which can be found at www.lahighwaysafety.org.

If you need to hire an attorney call, Sonja.

Sonja Bradley your Attorney in Hammond Louisiana, Denham Springs, Louisiana, Ponchatoula Louisiana, Livingston Louisiana, Walker Louisiana, Albany Louisiana, Amite Louisiana, and Surrounding Areas

Can I Move with My Child? A look at Child Relocation Law in Louisiana.

It’s normal for parents to have demanding situations arise with their children, especially for parents that are no longer together. When a solution can’t be worked out, the courts are available to resolve the matters. An issue that arises often concerns the relocation of children. The facts follow a similar pattern; The parents divorced and have a custody order in place. Everything goes smoothly for a few years, then the custodial parent gets a new job and wants to move with the children. Can they do this legally? Let’s start by looking at whether or not Louisiana’s relocation statute is applicable.

Louisiana’s Relocation Statute can be found in La. R.S. 9:355.1 et seq.

The Relocation Statute applies when one parent (or another person with custody) intends to establish the principal residence of a child at any location outside the state of Louisiana. It also applies when moving the child’s primary residence within the state of Louisiana more than 75 miles from the domicile of the other parent (if there is no custody order in place) or more than 75 miles from the principal residence of the child (if there is a custody order in place).

In our factual situation, the custodial parent is moving to Lake Charles, Louisiana from Albany, Louisiana. We start our evaluation by determining the principal residence of the child. We stated in our facts that a custody order was in place. The relevant portion of the statute states that it applies to moves of more than 75 miles from the principal residence of the child if there is a custody order in place. So how do you determine the principal residence of the child?

‍La. R.S. 9:355.1 (1) provides: (click here to read statute)

(1) “Principal residence of a child” means:

(a) The location designated by a court to be the primary residence of the child.
(b) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside.
(c) In the absence of a court order or an express agreement, the location, if any, at which the child has spent the majority of time during the prior six months.

We have a court order designating the residence in Albany, Louisiana, so that is the primary residence of the child. Next, we must determine if the move exceeds the number of allowable miles to move a child.

‍La. R.S. 9:355.2. Applicability (click here to read the statute)

A. This Subpart shall apply to an order regarding custody of or visitation with a child issued:

(1) On or after August 15, 1997.

(2) Before August 15, 1997, if the existing custody order does not expressly govern the relocation of the child.

B. This Subpart shall apply to a proposed relocation when any of the following exist:

(1) There is intent to establish the principal residence of a child at any location outside the state.

(2) There is no court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of the other parent.

(3) There is a court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered.

(4) If either no principal residence of a child has been designated by the court or the parties have equal physical custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of a person entitled to object to relocation.

C. To the extent that this Subpart conflicts with an existing custody order, this Subpart shall not apply to the terms of that order that govern relocation.

D. This Subpart shall not apply when either of the following circumstances exists:

(1) The persons required to give notice of and the persons entitled to object to a proposed relocation have entered into an express written agreement for the relocation of the principal residence of the child.

(2) There is in effect an order issued pursuant to Domestic Abuse Assistance, R.S. 46:2131, et seq., Protection from Dating Violence, R.S. 46:2151, Part II of Chapter 28 of Title 46 or the Post-Separation Family Violence Relief Act or Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code Title V of Code Book I of Title 9, except R.S. 9:372.1, all of the Louisiana Revised Statutes of 1950, Domestic Abuse Assistance, Chapter 8 of Title XV of the Children’s Code, or any other restraining order, preliminary injunction, permanent injunction, or any protective order prohibiting a person from harming or going near or in the proximity of the other person.

Emphasis is added to D., and this part does not apply if any of the listed circumstances exist.

Is Lake Charles Louisiana more than 75 miles from Albany, Louisiana? Yes. So the Relocation Statute is triggered, and you must abide by this statute before relocating your child. Who can propose relocation is the first question to be answered.

‍§355.3. Persons authorized to propose relocation of principal residence of a child (click here to read the statute)

The following persons are authorized to propose relocation of the principal residence of a child by complying with the notice requirements of this Subpart:

(1) A person designated in a current court decree as the sole custodian.

(2) A person designated in a current court decree as a domiciliary parent in a joint custody arrangement.

(3) A person sharing equal physical custody under a current court decree.

(4) A person sharing equal parental authority under Chapter 5 of Title VII of Book I of the Louisiana Civil Code.

(5) A person who is the natural tutor of a child born outside of marriage.

In our factual situation, there is a custody order in place, so La.R.S. 3:55.3 applies, so the domiciliary parent has the right to propose relocation. At this point, we have triggered the relocation statute and found that the parent has the right to seek relocation, so what is the next step? Provide information to the other parent.

‍§355.5. Mailing notice of proposed relocation address (click here to read the statute)

A. Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, or delivered by commercial courier as defined in R.S. 13:3204(D), to the last known address of the person entitled to notice under R.S. 9:355.4 no later than any of the following:

(1) The sixtieth day before the date of the proposed relocation.

(2) The tenth day after the date that the person proposing relocation knows the information required to be furnished by Subsection B of this Section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.

B. The following information shall be included with the notice of intended relocation of the child:

(1) The current mailing address of the person proposing relocation.

(2) The intended new residence, including the specific physical address, if known.

(3) The intended new mailing address, if not the same.

(4) The home and cellular telephone numbers of the person proposing relocation, if known.

(5) The date of the proposed relocation.

(6) A brief statement of the specific reasons for the proposed relocation of a child.

(7) A proposal for a revised schedule of physical custody or visitation with the child.

(8) A statement that the person entitled to object shall make any objection to the proposed relocation in writing by registered or certified mail, return receipt requested, within thirty days of receipt of the notice and should seek legal advice immediately.

C. A person required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.

The information must be provided to the other parent by certified or registered mail, return receipt requested or delivered by a commercial carrier to his or her last known address. Providing the information via text messaging or emailing is not sufficient under Louisiana law. This information must be provided to the other parent either by the sixtieth day before the date of the proposed relocation (if you know where you are going, etc.) or the tenth day after the date you know the information. If you know the required information, then you must provide a sixty-days notice. If you do not know that information, and could not have reasonably known that information, then you must provide that notice within ten days of knowing the address, physical location, and phone number. If you fail to give proper notice, you can hurt your chances to relocate your child successfully and may be subject to paying the objecting parents fees

After proper notice of the relocation, the other parent has 30 days to object. If they do not timely object, the requesting parent may relocate the principal residence of the child. If a proper objection is made, the requesting party has 30 days to file a motion to relocate. What is a proper objection made? La. R.S. 9:355.7 requires the parent must object, in writing, sent to your address provided in the notice, via certified mail or commercial carrier.

If the other parent objects relocation and you filed a timely Motion to Relocate the court will schedule a contradictory hearing to rule on the relocation issue. In making the determination, the court will consider if the relocation is made in good faith and is in the best interestof the child.

The factors to determine contested relocation are found in La. R.S. 9:355.14:

‍§355.14. Factors to determine contested relocation (click here to read the statute).

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:

(1) The nature, quality, the extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.

(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.

(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.

(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

(7) The reasons for each person for seeking or opposing the relocation.

(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.

(10) The feasibility of a relocation by the objecting person.

(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.

(12) Any other factors affecting the best interest of the child.

B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

Acts 1997, No. 1173, §1; Acts 2012, No. 627, §1.

To read more articles on family law issues like intrafamily adoption and divorce, click the links.

If you have questions about child relocation call Sonja Bradley your child custody and divorce attorney in Hammond Louisiana, Livingston Louisiana, Denham Springs, Louisiana, Walker Louisiana, Ponchatoula, Louisiana, Albany Louisiana, Amite Louisiana and surrounding areas.