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Securing an Adoption: Can parents challenge the adoption, and regain custody?

Adoptive parents are invariably concerned that the biological parents of children they adopt will come forward later and challenge the adoption.  Those who adopt a child want security, and confidence that the child will be safe and stable in their home.  These concerns may be in part due to the 1995 file Losing Isaiah, wherein a crack addicted mother loses her child and the child is later adopted.  Three years later, the biological mother seeks to overturn the adoption and regain custody.  Although the mother is legally successful, the actual result for the child is somewhat ambiguous.  As with most legal dramas adapted for television, the story is designed more for entertainment.

In Florida, parental rights must be terminated before an adoption can be granted by the court.  Fla. Stat. 63.087.  A separate petition is required to terminate parental rights and that petition must be granted before proceeding with an adoption petition.  Exceptions exist to the termination of parental rights requirement, such as in the case of stepparent adoptions and adult adoptions, but the end result of an adoption is the extinguishment of any rights the biological parents have to the child, including the right to custody, visitation or to support the child.  Alabama, which follows a more simplified approach, allows Probate Courts to grant adoptions while simultaneously terminating parental rights.  Therefore, while filed and secured by appropriate legal channels, adoptive parents have no reason to be concerned about biological parents coming forward to regain custody of children.

So what are the wrong legal channels? In my experience, the most fatal move an adoptive parent can make is to neglect the proper notice or service requirements.  Simply put, an adoption petition begins a lawsuit.  In any lawsuit, the petitioner must provide adequate notice of the petition to those with a legal interest in the case.  In other words, adoptive parents must either serve the biological parents with a copy of the petition, or constructively serve the parents with a copy of the petition through publication in a periodical.  Once served, biological parents must present their defenses to the petition, in court.  Failure to do so will likely result in the approval of the adoption petition even if the biological parents fail to appear at the final hearing.  Conversely, if the biological parents are not provided with notice of the petition, the court will lack personal jurisdiction over the parents and it should not grant the adoption.  Furthermore, even if the adoption is granted (without service), the parents could later have the adoption decree set aside for lack of due process (notice).

I have met many adoptive parents who are very reluctant to advise biological parents of the proposed adoption.  However, by securing service and notice, the adoption can be secured in a way that provides long term stability and peace of mind.

by

Andrew D. Wheeer is a family law, elder law and appellate attorney, and the founder of The Wheeler Firm, PA. Andrew only take cases in those practice areas in order to focus on those special areas of the law. With offices in Fort Walton Beach and Miramar Beach, Andrew represents clients throughout Okaloosa and Walton counties, and has represented more than 2,000 clients over the course of the past 15 years. Andrew attended the Cumberland School of Law at Samford University, and graduated with a Juris Doctorate of law in 2002. While attending law school, Andrew was active in numerous legal writing opportunities, won awards for legal writing and was selected as a member of the Cumberland Law Review. Andrew was then accepted to the Cumberland Study Abroad Program and attended Durham University in Durham, England. Andrew also worked as a research assistant and intern for Chief Magistrate Judge John Ott in the Federal District Court for the Northern District of Alabama. Over the next 15 years, Andrew represented thousands of clients in divorce, adoption, custody modification proceedings, child support contempt actions, probate litigation, and counseled clients on elder law rights, including long-term care planning and general estate planning. Andrew believes clients desire representation from attorneys who have a thorough understanding of their specific legal issues. Therefore, after beginning his career as a general practitioner, Andrew chose to focus his career on a few specific areas of law - those that affect the family. He continues to concentrate on those areas today. Andrew regularly interacts with the public by speaking to groups of people on family and elder law topics, including long-term care planning and techniques to avoid probate litigation. In 2012, Andrew began teaching seminars on adoption law through the National Business Institute, providing guidance to other attorneys on proper procedures to secure adoptions of children. Andrew is married to Regina Wheeler, with whom he has a son, and the family resides in Santa Rosa Beach, Florida. Andrew serves as President of the Destin Kiwanis Club and is active in the local chambers of commerce.

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