Check out some similar questions!

momoftwoboys · May 21, 2009, 09:31 AM

I live in Arkansas. I was never married to the father of my 5 year-old son. He had visitation rights until he was killed in a "freak" accident (that also injured my son). His parents (the paternal grandparents) are taking me to court for visitation rights. The paternal grandmother is not a good influence and tries to cause problems with my and my husband's (my 5 year-old's step-father) relationships with my son. She tells him things like, "he is not your real father, you don't have to listen to him, etc" We are fighting against them having any visitation at all. My question is... would we be able to push an adoption through and get their rights as grandparents terminated? My husband has wanted to adopt my son from the beginning. He has been a part of my son's life and a father to him since he was 10 months old. We wanted to start the adoption right after bio father passed away, but did not want to look callous and disrespectful. Now, I wish we had just done it. I mainly wondered if we could do the adoption when we are already involved in a grandparents visitation case...

ScottGem · May 21, 2009, 09:55 AM

If the GPs have already filed a case, then your case for adoption will probably be put off until the visitation case is settled.

However, I would proceed with the adoption anyway. Do not hide the adoption action from the GPs, make sure they are aware of it. Its very possible the desire to adopt might have some influence on the judge's decision.

momoftwoboys · May 21, 2009, 11:12 AM

I don't think I could legally hide the adoption action from them. I am pretty sure I have to post it in a local newspaper, in the least.

Thank you for your advice!

ScottGem · May 21, 2009, 11:32 AM

Originally Posted by momoftwoboys

I don't think I could legally hide the adoption action from them. I am pretty sure I have to post it in a local newspaper, in the least.

Thank you for your advice!

Actually, that's not the case. Since the bio dad is deceased, there is no reason to get his permission for the adoption. Basically its real simple. You apply for the adoption, showing a copy of the death certificate as proof you do not need the bio father's permission and the court will grant it. However, since adoption will usually terminate grandparent's rights, if there is an already pending case concerning visitation, if you try this as an end run around the pending case, you may get in trouble for it. So you should send a notice to the GPs of your petition. You can state this is a totally separate action and that it will not affect the court's decision on visitation.

You should have an attorney to help your through all this.

ScottGem · May 21, 2009, 11:37 AM

I found the relevant law and it looks like you don't have to worry.

A.C.A. § 9-13-103 - Visitation rights of grandparents when the child is in the custody of a parent.
(c)

(1) There is a rebuttable presumption that a custodian's decision denying or limiting visitation to the petitioner is in the best interest of the child.

(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:

(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and

(B) Visitation with the petitioner is in the best interest of the child.

(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:

(1)

(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;

(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or

(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or

(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.

(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:

(1) The petitioner has the capacity to give the child love, affection, and guidance;

(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and

(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.

Its not clear from your previous posts, but its doesn't appear that the GPs meet the "Significant and viable relationship" test. It also looks like they don't meet under section (e) either.

So I'm not sure how they expect to win in a court of law.

momoftwoboys · May 21, 2009, 01:50 PM

They could say that they could prove (C) because they lived within 2 miles of bio dad and he had every other weekend visitation until his death.

(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months;
We (husband and I) don't think they could prove (e) because of the guidance part of (1), all of (2), and all of (3).

(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;

(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and

(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.

We have not felt very positive about the whole thing because it seems like we are being forced to have the burden of proof... rather than them...

And to make matters worse, my parents have jumped on their bandwagon. They filed to intervene in the case also. That is a totally separate issue and a long story. But, we are afraid that it will make us look like we are being difficult rather than looking out for the best interests of our child(ren).

momoftwoboys · May 21, 2009, 01:55 PM

And we do have an attorney, I just wanted to get another perspective. We have not officially approached him about the adoption option yet...

ScottGem · May 21, 2009, 03:01 PM

They can't prove contact just because they lived 2 miles away from a father who had visitation. They have to show proof they were with the child.

But even if they do that, the rest of it will negate their claim, at least In my opinion.

stevetcg · May 22, 2009, 06:18 AM

The other thing that should be researched is if adoption terminates the grandparent's rights.

I have read several state laws on this and step parent adoption does not terminate rights awarded under grandparent visitation laws. Indiana, for instance, once grandparent rights have been established, it is almost impossible for them to be terminated without cause.

I am going to have to disagree with Scott here. I think the GP have a solid case and will likely be awarded visitation.

momoftwoboys · May 22, 2009, 06:33 AM

I will have to agree with you. I expect that they WILL be awarded something. The best we can hope for is that paternal GM will not cause a lot of issues down the road.

As for the adoption, had we started it immediately, I think their rights would have been terminated according to what I have researched in Arkansas. BUT, since they filed for GP rights before we filed for adoption, I think they will get some sort of visitation regardless. And we can deal with that as long as they don't fight the adoption. We have dealt with a lot more than this with the paternal side in the past...

Thank BOTH of you for your input and comments on all of this. I really appreciate it!

ScottGem · May 22, 2009, 06:40 AM

Originally Posted by stevetcg

The other thing that should be researched is if adoption terminates the grandparent's rights.

I checked and it does in Arkansas. However, grandparents can move to stop an adoption proceeding.

Originally Posted by momoftwoboys

As for the adoption, had we started it immediately, I think their rights would have been terminated according to what I have researched in Arkansas. BUT, since they filed for GP rights before we filed for adoption, I think they will get some sort of visitation regardless. And we can deal with that as long as they don't fight the adoption. We have dealt with a lot more than this with the paternal side in the past...

Yes, had you been able to get the adoption finalized before the GPs were aware of it, you could have, effectively, terminated their rights.

But I'm still not so sure they will get something. Do you have documentation of them trying to turn the child against the step-father? This will help your case.

momoftwoboys · May 22, 2009, 10:47 AM

The only documentation we have is the things our 5 year old has said. So, it would be our word against theirs. They have temporary visitation that is supervised by a therapist right now. We keep hoping the therapist will lean in our favor. He has said that he feels our son should have contact with them. But he also says that paternal GM needs to tone it down a lot... We hope that will be good for us IF he testifies in court that she is difficult...

ScottGem · May 22, 2009, 10:51 AM

Wow, what did you need us for? You seem to be doing everything right! ;)

Supervised visits with a therapist will work great. Is the therapist aware that you plan on having the step father adopt? If not, they should be.

momoftwoboys · May 22, 2009, 11:42 AM

Thanks! When it comes to the health and welfare of my children, I tend to do a lot of research! :rolleyes:

I am pretty sure we mentioned the adoption idea the first time we talked to the therapist, but I will be sure to remind him of it again.

Again, thank you for all of your help. It is nice to know that we are going down the right path for now.

If you happen to discover a miracle way of resolving things in our favor, feel free to let me know! LOL

GV70 · May 23, 2009, 04:56 AM

Actually when a parent is dead the Court usually grants visitation to the grandparents even if adoption occurred.