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Stepparent Adoption

Last Updated On: 2/2/2018 5:30:30 PM

This article answers questions about stepparent adoption under West Virginia law.  It is only about adoptions when a stepparent wants to adopt the child of his or her spouse. For information about adoption by someone other than a stepparent, read the article on Adoption.

What is stepparent adoption?

Adoption is a legal court process that transfers parental rights and duties to an adult other than the child’s biological parent. The most common form of adoption is stepparent adoption.

If your spouse has a child that is not your biological child, a stepparent adoption is a way for you and your spouse to ask a court to make you the legal parent for that child. The spouse who is the birth parent will join in the adoption process, so that the court knows he or she agrees.

Stepparent adoption is permanent. If the judge approves it, the other birth parents loses all custody and visitation rights. He or she won’t have to pay child support or have any other responsibilities for the child. The stepparent is the new legal parent. The stepparent will continue as legal parent even if he or she later gets divorced from the birth parent.

Do I need consent from the other birth parent to adopt my stepchild?

Yes, in most cases. In stepparent adoptions, the consent of the other birth parent is required unless the other birth parent's parental rights have been terminated due to in an abuse or and neglect proceeding, or if the judge finds that the other birth parent has abandoned the child.  

Getting consent from the other birth parent can be difficult because, in giving consent, that birth parent is giving up all of his or her parental rights. Of course, this means that that birth parent is giving up all parental responsibilities, such as paying child support, as well. If the birth parent does not have a relationship with the child anyway, the stepparent may have an easier time getting consent. In some cases, the other birth parent may recognize that the stepparent adoption is in the child's best interest. In those cases, consent is not hard to obtain. 

The other birth parent must give consent in writing. The writing signed by the other birth parent must have very specific information that required by West Virginia law (W.Va. Code 48-22-303). Click here to read what the consent must say. You may need a lawyer to help you write the consent.  

What is abandonment?

If a parent goes more than six months without visiting or contacting the child or financially helping the child within that parent’s means, the court will presume the child has been abandoned by that parent. You will have to present evidence, like your testimony, to prove abandonment.

For a child under 6 months of age, the court may find that the other birth parent has abandoned the child if he or she denounces paternity, fails to contribute to prenatal or postnatal care of the mom and child, fails to financially support the child, or fails to visit the child. Again, you will have to present evidence to prove abandonment.

What if the other birth parent does not agree to the stepparent adoption?

If the other birth parent does not agree to the adoption, then the adoption process may be more complicated. You will have to convince the court that the other birth parent’s rights should be terminated despite that parent’s objection because he or she abandoned the child, or that the other parent is unfit to safely parent the child and that it would be in the child’s best interests for the proposed adoptive parent to take on that responsibility.

How long will I have to be married to the birth parent before I can adopt my stepchild?

There is no set time period that you have to be married in order to adopt, but it will be important to show that you have a stable and dedicated relationship to the birth parent (and the child). Therefore, the longer the relationship has existed, the better, but under the right circumstances even a couple that has been together for only a short period of time can proceed with a stepparent adoption. One absolute requirement to be aware of is that the child must have resided with the step-parent for at least 6 months before the adoption can be granted.

Will I have to go through any screening to adopt my stepchild?

The court must find that the adoption is in the best interests of the child and that the adopting stepparent has adequate income and resources to care for the child. To help the court get the information it needs, you will probably need to get a home study done. You will need to contact the West Virginia Department of Health and Human Resources, or another competent professional, such as your pastor or the Children’s Home Society, about conducting a required home study. After they visit your home, they would prepare a written report and file it with the court. In some cases, the judge may waive the necessity of the home study. This would most often be done in an uncontested adoption proceeding where the child has lived with the stepparent for a long time and the other birth parent has consented to the adoption, or has never been involved in the child’s life.  

Will the child have to consent to the adoption?

If the child is 12 years old or over, the child must consent to the adoption.

What are the legal effects of an adoption?

A final order of adoption terminates all legal rights and obligations of the other birth parent with respect to the child, including the right to petition any court for custody or visitation with the child or obligations to pay future child support. This does not mean that all obligations to pay back child support are eliminated.

The new adoptive step-parent is considered the child’s parent and, as such, has all the legal and financial rights and obligations of any natural parent.

Do I have to pay child support for a child I adopted?

Yes. Once a child is adopted, the duty to provide financial support for the adopted child begins. A stepparent who adopts his or her spouse’s child may have to provide child support should the stepparent and spouse later separate and/or divorce.

Do I need a lawyer to help with a stepparent adoption?

Not necessarily, but a lawyer will make the process easier and will increase the likelihood of your success. The Supreme Court of Appeals of West Virginia does not have forms you can fill out for a stepparent adoption. You will probably need a lawyer to at least help you write the forms or give you the information you need for the forms you file.  You can apply for help from Legal Aid or contact other legal resources.

This is general legal information. For guidance about your situation, talk to a lawyer.