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.