Can I Adopt My Grandchild in Florida if the Mother Signs a Paper?
Full Question:
Answer:
The answer will depend on all the facts involved, such as whether the parents consent to the adoption and termination of parental rights. The overriding factor will be the court’s determination of the child’s best interests, based on all the facts and circumstances, such as whether a home study is passed.
Please see the following FL statutes to determine applicability:
63.042 Who may be adopted; who may adopt.--
(1) Any person, a minor or an adult, may be adopted.
(2) The following persons may adopt:
(a) A husband and wife jointly;
(b) An unmarried adult; or
(c) A married person without the other spouse joining as a petitioner, if the person to be adopted is not his or her spouse, and if:
1. The other spouse is a parent of the person to be adopted and consents to the adoption; or
2. The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court for good cause shown or in the best interest of the child.
(3) No person eligible to adopt under this statute may adopt if that person is a homosexual.
(4) No person eligible under this section shall be prohibited from adopting solely because such person possesses a physical disability or handicap, unless it is determined by the court or adoption entity that such disability or handicap renders such person incapable of serving as an effective parent.
63.062 Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue.--
(1) Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:
(a) The mother of the minor.
(b) The father of the minor, if:
1. The minor was conceived or born while the father was married to the mother;
2. The minor is his child by adoption;
3. The minor has been adjudicated by the court to be his child by the date a petition is filed for termination of parental rights;
4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c) by the date a petition is filed for termination of parental rights; or
5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).
(c) The minor, if 12 years of age or older, unless the court in the best interest of the minor dispenses with the minor's consent.
(d) Any person lawfully entitled to custody of the minor if required by the court.
(e) The court having jurisdiction to determine custody of the minor, if the person having physical custody of the minor does not have authority to consent to the adoption.
(2) In accordance with subsection (1), the consent of an unmarried biological father shall be necessary only if the unmarried biological father has complied with the requirements of this subsection.
(a)1. With regard to a child who is placed with adoptive parents more than 6 months after the child's birth, an unmarried biological father must have developed a substantial relationship with the child, taken some measure of responsibility for the child and the child's future, and demonstrated a full commitment to the responsibilities of parenthood by providing financial support to the child in accordance with the unmarried biological father's ability, if not prevented from doing so by the person or authorized agency having lawful custody of the child, and either:
a. Regularly visited the child at least monthly, when physically and financially able to do so and when not prevented from doing so by the birth mother or the person or authorized agency having lawful custody of the child; or
b. Maintained regular communication with the child or with the person or agency having the care or custody of the child, when physically or financially unable to visit the child or when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.
2. The mere fact that an unmarried biological father expresses a desire to fulfill his responsibilities towards his child which is unsupported by acts evidencing this intent does not preclude a finding by the court that the unmarried biological father failed to comply with the requirements of this subsection.
3. An unmarried biological father who openly lived with the child for at least 6 months within the 1-year period following the birth of the child and immediately preceding placement of the child with adoptive parents and who openly held himself out to be the father of the child during that period shall be deemed to have developed a substantial relationship with the child and to have otherwise met the requirements of this paragraph.
(b) With regard to a child who is younger than 6 months of age at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:
1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.
2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother's pregnancy and the child's birth in accordance with his ability to pay.
3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.
(c) The petitioner shall file with the court a certificate from the Office of Vital Statistics stating that a diligent search has been made of the Florida Putative Father Registry of notices from unmarried biological fathers described in subparagraph (b)1. and that no filing has been found pertaining to the father of the child in question or, if a filing is found, stating the name of the putative father and the time and date of filing. That certificate shall be filed with the court prior to the entry of a final judgment of termination of parental rights.
(d) An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.
(3) Pursuant to chapter 48, an adoption entity shall serve a notice of intended adoption plan upon any known and locatable unmarried biological father who is identified to the adoption entity by the mother by the date she signs her consent for adoption or who is identified by a diligent search of the Florida Putative Father Registry, or upon an entity whose consent is required. Service of the notice of intended adoption plan is not mandatory when the unmarried biological father signs a consent for adoption or an affidavit of nonpaternity. The notice may be served at any time before the child's birth or before placing the child in the adoptive home. The recipient of the notice may waive service of process by executing a waiver and acknowledging receipt of the plan. The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan he must, within 30 days after service, file with the court a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2. and a claim of paternity form with the Office of Vital Statistics, and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics. The notice must also include instructions for submitting a claim of paternity form to the Office of Vital Statistics and the address to which the claim must be sent. If the party served with the notice of intended adoption plan is an entity whose consent is required, the notice must specifically state that the entity must file, within 30 days after service, a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interest of the child.
(a) If the unmarried biological father or entity whose consent is required fails to timely and properly file a verified response with the court and, in the case of an unmarried biological father, a claim of paternity form with the Office of Vital Statistics, the court shall enter a default against any unmarried biological father or entity and the consent of that unmarried biological father or entity shall no longer be required under this chapter and shall be deemed to have waived any claim of rights to the child. To avoid a default, within 30 days after receipt of service of the notice of intended adoption plan:
1. The unmarried biological father must:
a. File a claim of paternity with the Florida Putative Father Registry maintained by the Office of Vital Statistics;
b. File a verified response with the court which contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2.; and
c. Provide support for the birth mother and the child.
2. The entity whose consent is required must file a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interest of the child.
(b) If the mother identifies a potential unmarried biological father whose location is unknown, the adoption entity shall conduct a diligent search pursuant to s. 63.088. If, upon completion of a diligent search, the potential unmarried biological father's location remains unknown and a search of the Florida Putative Father Registry fails to reveal a match, the adoption entity shall request in the petition for termination of parental rights pending adoption that the court declare the diligent search to be in compliance with s. 63.088, that the adoption entity has no further obligation to provide notice to the potential unmarried biological father, and that the potential unmarried biological father's consent to the adoption is not required.
(4) Any person whose consent is required under paragraph (1)(b), or any other man, may execute an irrevocable affidavit of nonpaternity in lieu of a consent under this section and by doing so waives notice to all court proceedings after the date of execution. An affidavit of nonpaternity must be executed as provided in s. 63.082. The affidavit of nonpaternity may be executed prior to the birth of the child. The person executing the affidavit must receive disclosure under s. 63.085 prior to signing the affidavit.
(5) A person who signs a consent to adoption or an affidavit of nonpaternity must be given reasonable notice of his or her right to select a person who does not have an employment, professional, or personal relationship with the adoption entity or the prospective adoptive parents to be present when the consent to adoption or affidavit of nonpaternity is executed and to sign the consent or affidavit as a witness.
(6) The petitioner must make good faith and diligent efforts as provided under s. 63.088 to notify, and obtain written consent from, the persons required to consent to adoption under this section.
(7) If parental rights to the minor have previously been terminated, the adoption entity with which the minor has been placed for subsequent adoption may provide consent to the adoption. In such case, no other consent is required. The consent of the department shall be waived upon a determination by the court that such consent is being unreasonably withheld and if the petitioner has filed with the court a favorable preliminary adoptive home study as required under s. 63.092.
(8) A petition to adopt an adult may be granted if:
(a) Written consent to adoption has been executed by the adult and the adult's spouse, if any.
(b) Written notice of the final hearing on the adoption has been provided to the parents, if any, or proof of service of process has been filed, showing notice has been served on the parents as provided in this chapter.
(9) A petition for termination of parental rights must be filed in the appropriate county as determined under s. 63.087(2). If a parent whose consent is required objects to venue in the county where the action was filed, the court may transfer venue to a proper venue consistent with this chapter and chapter 47 unless the objecting parent has previously executed a waiver of venue.
(10) The waiver of venue must be a separate document containing no consents, disclosures, or other information unrelated to venue.
63.087 Proceeding to terminate parental rights pending adoption; general provisions.--
(1) JURISDICTION.--A court of this state which is competent to decide child welfare or custody matters has jurisdiction to hear all matters arising from a proceeding to terminate parental rights pending adoption.
(2) VENUE.--
(a) A petition to terminate parental rights pending adoption must be filed:
1. In the county where the child resides; or
2. In the county where the adoption entity is located.
(b) If a petition for termination of parental rights has been filed and a parent whose consent is required objects to venue, there must be a hearing in which the court shall determine whether that parent intends to assert legally recognized grounds to contest a termination of parental rights and, if so, the court may transfer venue to a proper venue under this subsection. For purposes of selecting venue, the court shall consider the ease of access to the court for the parent and the factors set forth in s. 47.122.
(c) If there is a transfer of venue, the court may determine which party shall bear the cost of venue transfer.
For purposes of the hearing under this subsection, witnesses located in another jurisdiction may testify by deposition or testify by telephone, audiovisual means, or other electronic means before a designated court or at another location. Documentary evidence transmitted from another location by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission. The court on its own motion may otherwise prescribe the manner and terms upon which the testimony is taken.
(3) PREREQUISITE FOR ADOPTION.--A petition for adoption may not be filed until after the date the court enters the judgment terminating parental rights pending adoption. Adoptions of relatives, adult adoptions, or adoptions of stepchildren are not required to file a separate termination of parental rights proceeding pending adoption. In such cases, the petitioner may file a joint petition for termination of parental rights and adoption, attaching all required consents, affidavits, notices, and acknowledgments. Unless otherwise provided by law, this chapter applies to joint petitions.
(4) PETITION.--
(a) A proceeding seeking to terminate parental rights pending adoption pursuant to this chapter must be initiated by the filing of an original petition after the birth of the minor.
(b) The petition may be filed by a parent or person having physical custody of the minor. The petition may be filed by an adoption entity only if a parent or person having physical or legal custody who has executed a consent to adoption pursuant to s. 63.082 also consents in writing to the adoption entity filing the petition. The original of such consent must be filed with the petition.
(c) The petition must be entitled: "In the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child."
(d) The petition to terminate parental rights pending adoption must be in writing and signed by the petitioner under oath stating the petitioner's good faith in filing the petition. A written consent to adoption, affidavit of nonpaternity, or affidavit of diligent search under s. 63.088, for each person whose consent to adoption is required under s. 63.062, must be executed and attached.
(e) The petition must include:
1. The minor's name, gender, date of birth, and place of birth. The petition must contain all names by which the minor is or has been known, excluding the minor's prospective adoptive name but including the minor's legal name at the time of the filing of the petition. In the case of an infant child whose adoptive name appears on the original birth certificate, the adoptive name shall not be included in the petition, nor shall it be included elsewhere in the termination of parental rights proceeding.
2. All information required by the Uniform Child Custody Jurisdiction and Enforcement Act and the Indian Child Welfare Act.
3. A statement of the grounds under s. 63.089 upon which the petition is based.
4. The name, address, and telephone number of any adoption entity seeking to place the minor for adoption.
5. The name, address, and telephone number of the division of the circuit court in which the petition is to be filed.
6. A certification of compliance with the requirements of s. 63.0425 regarding notice to grandparents of an impending adoption.
(5) SUMMONS TO BE ISSUED.--The petitioner shall cause a summons to be issued substantially in the form provided in Form 1.902, Florida Rules of Civil Procedure. Petition and summons shall be served upon any person whose consent has been provided but who has not waived service of the pleadings and notice of the hearing thereon and also upon any person whose consent is required but who has not provided that consent.
(6) ANSWER AND APPEARANCE REQUIRED.--An answer to the petition or any pleading requiring an answer must be filed in accordance with the Florida Family Law Rules of Procedure. Failure to file a written response to the petition constitutes grounds upon which the court may terminate parental rights. Failure to appear at the hearing constitutes grounds upon which the court may terminate parental rights. Any person present at the hearing to terminate parental rights pending adoption whose consent to adoption is required under s. 63.062 must:
(a) Be advised by the court that he or she has a right to ask that the hearing be reset for a later date so that the person may consult with an attorney; and
(b) Be given an opportunity to admit or deny the allegations in the petition.
63.102 Filing of petition for adoption or declaratory statement; venue; proceeding for approval of fees and costs.--
(1) PETITION FOR ADOPTION.--A petition for adoption may not be filed until after the entry of the judgment or decree terminating parental rights unless the adoptee is an adult or the petitioner is a stepparent or a relative. After a judgment terminating parental rights has been entered, a proceeding for adoption may be commenced by filing a petition entitled, "In the Matter of the Adoption of _____" in the circuit court. The person to be adopted shall be designated in the caption in the name by which he or she is to be known if the petition is granted. Except for a joint petition for the adoption of a stepchild, a relative, or an adult, any name by which the minor was previously known may not be disclosed in the petition, the notice of hearing, the judgment of adoption, or the court docket as provided in s. 63.162(3).
(2) VENUE.--A petition for adoption or for a declaratory statement as to the adoption contract must be filed in the county where the petition for termination of parental rights was filed or granted or where the adoption entity is located. The circuit court in this state shall retain jurisdiction over the matter until a final judgment is entered on the adoption, either within or outside the state. The Uniform Child Custody Jurisdiction and Enforcement Act does not apply until a final judgment is entered on the adoption.
(3) FILING OF ADOPTION PETITION REQUIRED.--Unless leave of court is granted for good cause shown, a petition for adoption shall be filed not later than 60 days after entry of the final judgment terminating parental rights.
(4) CONFIDENTIALITY.--If the filing of the petition for adoption or for a declaratory statement as to the adoption contract in the county where the petitioner or minor resides would tend to endanger the privacy of the petitioner or minor, the petition for adoption may be filed in a different county, provided the substantive rights of any person will not thereby be affected.
(5) PRIOR APPROVAL OF FEES AND COSTS.--A proceeding for prior approval of fees and costs may be commenced any time after an agreement is reached between the birth mother and the adoptive parents by filing a petition for declaratory statement on the agreement entitled "In the Matter of the Proposed Adoption of a Minor Child" in the circuit court.
(a) The petition must be filed by the adoption entity with the consent of the parties to the agreement.
(b) A contract for the payment of fees, costs, and expenses permitted under this chapter must be in writing, and any person who enters into the contract has 3 business days in which to cancel the contract unless placement of the child has occurred. To cancel the contract, the person must notify the adoption entity in writing by certified United States mail, return receipt requested, no later than 3 business days after signing the contract. For the purposes of this subsection, the term "business day" means a day on which the United States Postal Service accepts certified mail for delivery. If the contract is canceled within the first 3 business days, the person who cancels the contract does not owe any legal, intermediary, or other fees, but may be responsible for the adoption entity's actual costs during that time.
(c) The court may grant approval only of fees and expenses permitted under s. 63.097. A prior approval of prospective fees and costs shall create a presumption that these items will subsequently be approved by the court under s. 63.132. The court, under s. 63.132, may order an adoption entity to refund any amounts paid under this subsection that are subsequently found by the court to be greater than fees, costs, and expenses actually incurred.
(d) The contract may not require, and the court may not approve, any amount that constitutes payment for locating a minor for adoption.
(e) A declaratory statement as to the adoption contract, regardless of when filed, shall be consolidated with any related petition for adoption. The clerk of the court shall only assess one filing fee that includes the adoption action, the declaratory statement petition, and the petition for termination of parental rights.
(f) Prior approval of fees and costs by the court does not obligate the parent to ultimately relinquish the minor for adoption.
(6) STEPCHILD, RELATIVE, AND ADULT ADOPTIONS.--Petitions for the adoption of a stepchild, a relative, or an adult shall not require the filing of a separate judgment or separate proceeding terminating parental rights pending adoption. The final judgment of adoption shall have the effect of terminating parental rights simultaneously with the granting of the decree of adoption.
