Whether adopted at birth, through fostering, or after marriage, your adopted child is a full-fledged member of your family. However, when you divorce the other parent of your adopted child, how will custody be decided? Are there special considerations? What special help, if any, should you seek to preserve your rights? Read on to learn more about how custody matters are decided in these unique situations.
How is custody of an adopted child generally determined?
Because the adoption process severs the parental rights of the birth parent, there is no true legal distinction between an adoptive parent and a birth parent. For that reason, speaking strictly of the law in most states, custody matters should be decided no differently whether the child is adopted or biological.
However, judges have quite a bit of discretion in custody matters, and will generally take into account the best wishes of the child. This can mean that the adoption status becomes a factor in awarding custody, even if legally, both parents are equally entitled to custody of the child.
What if only one parent is biologically related to the adopted child?
This is a common situation in which the "best interests of the child" doctrine can supersede the legal doctrine which states that adoptive parents have equal rights as biological parents. In many cases, judges may feel that the child's best interest is to remain with the parent to whom he or she is biologically related.
As an example -- when the parental rights of your child's biological parent are terminated and your new spouse adopts your child, your new spouse is legally just as much your child's parent as you are. However, if you later divorce this new spouse, unless you are shown to somehow be unfit as a primary parent (because of addiction, abuse, or other issues) the courts are unlikely to grant custody to the adoptive parent, since he or she is not biologically related to the child.
This can also be a complicating factor in same-sex marriages, in which the egg or sperm of only one partner was used to conceive a child. Even if the other partner adopts the child at birth, the courts may determine that the child should stay with his or her biological parent.
Are the child's wishes taken into account?
If your child is old enough, they may be able to choose their own custody situation. Although some courts will not request a preference from a child under age 7 or so, many courts will allow a child over age 14 to choose which parent he or she would like to be the custodial parent.
This selection is usually made during a private conversation between the child and the judge, to avoid any attempts by either parent to influence the child's decision. Although many judges will allow the child to make this decision alone, if there are any indications that the child has chosen one parent because the child believes he or she will be less supervised or disciplined at this parent's house, the judge may override this selection.
What should you do if you are the adoptive parent and believe the biological parent is not a good custody choice?
If you believe your ex-spouse or soon-to-be-ex-spouse is a good parent, and overall your child should be well cared for at this parent's home, there are likely few reasons not to agree to joint custody. However, if you have concerns about your child's care, you may wish to seek full legal and physical custody. This can be a challenge if you are the only adoptive parent, for the reasons discussed above.
If your concerns are significant enough to cause you fear that joint custody will be awarded, you should consult an experienced divorce attorney, like one at http://www.glfamilylaw.com, to handle your case. This attorney will be able to help you show the court that you should be granted full custody, even if your child is biologically related to only the other parent.