I have a friend who has been with a man for a little under 2 years. They live together; he's divorced and has a 7 year old with his ex-wife. The ex-wife doesn't pay child support, doesn't call their son, doesn't see their son, etc. She's actually heading to jail for a few years for felony charges. The father has not yet asked her to surrender her parental rights, but has been seriously contemplating it.

What's confusing to me is this: my friend claims that she has been told by multiple attorneys that if she and the father marry, the court will take away the rights of the birth mother and allow my friend to adopt the child. I've been trying to tell her that the court will not take away the mother's rights simply because the father got remarried; they may take them away if there is proof that she is harmful to the child. She insists that the court will not let the mother surrender her rights unless there is another party willing to adopt and that this is what she's been given as legal advice.

Am I missing something here? I've never heard of a court stripping a parent's rights just because the step-parent wants to adopt the child.

Generally, unless a person is a threat or a danger to a child, parental rights can not be relinquished unless someone is willing to adopt.

Taking away someone's rights are a different story altogether, and the state will not do so unless the person is a danger to the child.

So in a way, you're both right. The state won't take away parental rights JUST because one of the parents remarries, but they also won't generally allow a parent to relinquish parental rights unless there is someone willing to adopt the child waiting in the wings.

What she thinks is that if she marries the father, the court will take the birth mother's rights away just because she is willing to adopt the child. I just don't see that being valid legal advice and I told her that.

I did tell her that if the birth mother is harmful to the child, then the court will take away her rights. But not just because someone else wants to adopt the child.

No, what happens, in some states if the other party goes to prison for a longer period that is grounds to ask for rights to be taken away,

For adoption the one parent has to sign their rights away, or not show up in court to fight the adoption. I would guess they just assume she will sign her rights away

The birth mother actually just filed a motion to modify the child support order that's currently in place, so the father has a hearing on 10/15. I suggested that they ask her at that time to sign over her rights but my friend keeps insisting that the court won't allow it, but I don't see where the harm would be in asking.

-Actually from what I've read, that if it's petitioned for TPR (termination of parental rights) and felony charges on the mother are present with jail time that is detrimental to the child's stability and well being, and there is someone willing to adopt, the courts will more readily and easily do the TPR, voluntarily or not. She would be considered an unfit parent due to the jail time, and not being able to provide for the child. So even if it happens involuntarily there are grounds for termination. A good website to look at is http://www.childwelfare.gov/systemwide/laws_policies/statutes/groundterminall.pdf

They have by state reasons for termination if they choose to go to involuntary TPR, it is in the child's best interest as far as the state is concerned. The mother is also guilty of what would be considered abandonment since she hasn't contacted or provided for the child in over 6 months.

Your friend is right though, most courts won't do an involuntary TPR, without someone willing to adopt unless there is extreme abuse going on.

And this thread is two years old.

Closed.