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I live in Western NYS. I had a daughter in 2002 with my ex husband. We separated shortly after and I was granted sole custody in 2005 due to his lack of involvement with my daughter. Currently I have sole custody and his visitation rghts were suspended in 2006 for 6 months and he never repetitioned to get visitation back so there is no order for visitation.
I met my current husband in 2004 and we were married in 2006 and have two more children together ages 2 and 4 months.
My ex-husband has not called my daughter in years and has not seen her since Nov 2005. She doesn't know his name or what he looks like and calls my husband, 'Daddy'. She knows of my ex-husband- she calls him her 'other daddy', but she is not interested in a relationship with him. My ex-husband clearly does not want the responsibility of raising a child but refuses to consent to a stepparent adoption. He pays support sporatically through wage garnishment and we go to court on a regular basis for violations of this current order.
My daughter is very distraught to not share our family's name. She feels cheated that we all have the same last name and hers is different. My husband has always wanted to adopt her as he is her true father. At school, she becomes very upset when they refer to her with her legal last name.
On top of the lack of involvement in her life, my ex husband has been arrested several times for drug abuse, assault, DWI, petit larceny, etc etc. He is also addicted to pain killers and overdoses frequently to the point of needing resuscitation and hospitalization. Perhaps this latter information is irrelevant, but it is a clear indicator of his character.
When we lived in a different NYS county in 2007, my husband attempted to adopt my daughter and the judge would not hear our case. He said my ex husband needs to consent or be physically/mentally unable to consent to proceed.
My questions are:
1- Now that it has been several years without contact besides garnished wages- and my husband wants to adopt, will a judge hear our case?
2- As heart breaking as it will be to hear a 'No' to the previous question, will they at least consider a name change so she can 'be like the rest of us'?
3- How much does a stepparent adoption cost?
4- What can we do to appeal if the judge won't hear us?
5- Are there lawyers in my area (WNY) who will work on a sliding scale?
My questions are:
1- Now that it has been several years without contact besides garnished wages- and my husband wants to adopt, will a judge hear our case?
2- As heart breaking as it will be to hear a 'No' to the previous question, will they at least consider a name change so she can 'be like the rest of us'?
3- How much does a stepparent adoption cost?
4- What can we do to appeal if the judge won't hear us?
5- Are there lawyers in my area (WNY) who will work on a sliding scale?
Thank you,
A seriously concerned mother
1 - No. Your current husband cannot adopt unless your husband agrees and signs the consent papers. No way around it.
2 - You can always petition for a name change. The request has to be published. "
It is possible, however, to change a child’s name without the process of adoption through petitioning the court for a name change by filing certain paperwork. How this works will vary from state to state, and while in the simplest cases you may be able to fill out the forms yourself, you will likely need to consult a lawyer or a legal aid society. You will also need to demonstrate that you have notified (or, if he is long gone, attempted to notify) the child’s natural father of your desire to change the child’s name. In some states, the natural father’s consent is required; in others, it is not. The court will weigh whether or not the name change is in the child’s best interests and will accept or deny the petition accordingly." In NY I believe you need the consent of the father as this is seen as putting a wedge between the father and the child. Essortment Articles: Free Online Articles on Health, Science, Education & More..
3 - The cost of adoption varies Attorney to Attorney BUT, again, without the consent of the father there can be no adoption. It would be best to consult with an Attorney, ask about fees up front.
4 - You would have to change the law in order to have your husband adopt without the father's consent - and that isn't going to happen.
5 - I am not aware of any Attorneys in family practice in WNY who have a "sliding scale" when it comes to adoptions. Your best bet is to call around and ask about fees. Disbursements and filing fees are also expensive in these cases so make certain you are clear on what the total could be.
1. You can probably get a judge to "hear your case" but I wouldn't count on getting any different of an outcome than you have in the past. Bottom line, if the bio dad won't consent to the adoption, then it won't happen. You were already told that by one judge and there's no reason to believe that another judge will tell you something different.
2. Actually, your daughter can use any name she wants, regardless of what her legal name might be.
3. Filing fees plus attorney's fees. The court clerk should be able to advise you as to the filing fees. Your attorney will advise you as to his/her fees.
4. Probably not much. Generally an appeal can only be considered if it can be demonstrated that proper procedure was not followed ; simply not being satisfied with the judge's decision, in and of itself, is not grounds for an appeal.
5. Possibly. You'd have to ask around to find out.
As hard as it may be for you to hear this answer and as unjust as it may seem the father still has rights. And courts are very reluctant to involuntarily take away those rights (as you have found out).
On the other hand, have you made any attempt to get the father to agree? Generally an absentee father, like you described, is usually willing to relinquish since the act of adoption will terminate any child support. So if his wages have been garnished for support, he can have that stopped once the adoption is final.
As far as the name, you can request that the school refer to your daughter by your husband's name except where a legal name is required. A person can use any name they want unless there is intent to defraud.
I see both points, but through reading the previous threads, I saw a lot of quesitons where women were trying to take rights away from their ex's and the answers from the 'experts' were that if there was a stepparent who wanted to adopt, they would make concessions. Several people reported, "they take unfit parents rights away everyday... they would consider stripping their rights if the absent parent was standing in the way of a stepparent adoption."
I was asking #1 because I am in a different county than before and I have now been married for 3 years vs. the one and he has been absent for 4 years versus the 1. Just made sense to ask.
I have tried to get him to agree. Unfortunately he views her as property. It's really just a power struggle. He doesn't like me so he won't go along with anything I want. My poor daughter is the one who gets hurt.
I have a money judgement for back support in the amount of $9500. Even though he lives with his mother, has no license, job, etc etc... he won't consider signing off rights to be rid of that debt.
The fact still remains that, if a biological parent is unwilling to consent to an adoption, then it's very hard to bring it about. Just because a parent doesn't have much contact with his/her child(ren) and/or doesn't pay much in child support doesn't necessarily make him/her "unfit" in the eyes of the law, to the point where a judge would compel him/her to involuntarily relinquish his/her rights.
I see both points, but through reading the previous threads, I saw a lot of quesitons where women were trying to take rights away from their ex's and the answers from the 'experts' were that if there was a stepparent who wanted to adopt, they would make concessions. Several people reported, "they take unfit parents rights away everyday... they would consider stripping their rights if the absent parent was standing in the way of a stepparent adoption."
I think you have misunderstood the answers you reviewed. If you look at the top of this forum, there is a sticky note I wrote that deals with this issue. the bottomline is that courts are VERY reluctant to issue a TPR (Termination of Parental Rights). Generally the courts will do so ONLY to clear the way for an adoption BUT only if the legal parent agrees. So adopting a stepchild is a two pronged process.
You might be able to involuntarily get a TPR if you can prove the legal parent is a danger to the child. But that is very difficult to do.
Many attorneys will give an initial free consult. So a local lawyer is better equipped to know the demeanor of the courts you will deal with and can better advise on your chances.
I know this is disheartening and I empathize with your daughter. But the law and case law is pretty clear here.
Ok, thanks for everyone's help. I really don't understand the law I guess. Why biology constitutes a parent even though they don't support a child financially or emotionally. Seems to me to be emotional abuse, neglect, abandonment... but I am on the receiving end of it as I watch my daughter question her right to be loved by this awful man. The law is there for a reaosn, even if it doesn't walk in my child's shoes so I will try to reason with him again. There has to be some way he will allow her to be happy. If the object isn't money- perhaps it's pride.
I would just like to point out that it is a GOOD thing that it is so hard to get a TPR.
Imagine if someone could turn that against YOU and take your kids away, based on what THEY think is best for the child--wouldn't that make you a little more cautious about the whole thing?
Involuntary TPRs are hard to get for a very good reason: to protect biological parents from involutarily losing their children.
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