If I Have Sole Custody, Can My New Spouse Adopt My Child?

Stepparent adoption is a wonderful way to legally and emotionally affirm a new parent's permanent relationship with a child. If you've married someone who is not the biological parent of your child, your new spouse can legally adopt your child.

However, even if you have sole legal and physical custody and even if you haven’t heard or seen from your child’s other biological parent in years, that parent’s rights must still be addressed by the court. And, if the adoptee is a minor, the court must serve the other legal (biological) parent with notice of the adoption.

If the other biological parent objects, the case proceeds as non-consensual and there is usually a trial to address the non-consenting parent’s rights. If the other biological parent does give their consent to the adoption, their legal parental rights will then be terminated by the court so that the stepparent may assume those legal rights and responsibilities.

One of the most common things that Jennifer and Catelyn hear from clients is, “I have sole legal and physical custody and the other parent doesn’t even have visitation rights. Does the other biological parent still have to be involved in this decision?” Yes. Loss of custody does not terminate parental rights. The other biological parent must be served with notice of the adoption.

We know that the differences between custody and parental rights can be a bit confusing and that you may have some questions about when a stepparent adoption can take place. Below, we’ll try to answer your questions. If you have additional questions, or if you’re ready to begin the stepparent adoption process, reach out to us now.

FAQ About Sole Custody and Adoption

Custody matters aren’t always legally straightforward, even when the emotional situation seems simple. If only one person takes day-to-day care of a child, shouldn’t they be the only ones involved in important decisions regarding that child? It's not quite that simple.

We know that you probably have some questions based on your scenario. Here are some questions Jennifer and Catelyn frequently receive, and the answers they give:

“If I have sole custody, can my new husband adopt my child?”

Typically, yes. This is called a stepparent adoption, and we can help you complete one. Learn more about this type of adoption here, or contact us to get started.
But again, even if your child’s other biological parent does not have legal or physical custody, they still have parental rights. Those rights must be addressed before an adoption can occur.

“Can I adopt a stepchild when other parent has no custody?”

There is a difference between “custody” and “parental rights." Your stepchild's other biological parent probably still has legal parental rights, even if they don't have custody. So, to legally adopt your stepchild and take on those parental rights, the other biological parent's rights must first be terminated. This means that the other parent will need to be served notice of the stepparent adoption.

“I have sole custody. Can my husband adopt without the consent of my child’s biological father?”

No. In most situations, your child’s biological father will need to give his consent to the stepparent adoption process, or at least be served notice. His legal parental rights must be terminated before your husband can assume those legal rights.

“Can my child be adopted if I don't have custody?”

Even if you don’t have custody of your biological child, you likely still have legal parental rights. Your child can only be adopted after your parental rights have been terminated in court. This can be done voluntarily (you give your consent to the pending adoption), or sometimes, involuntarily (if a court finds reason for the termination of your rights to be within the best interest of the child). If there is a pending adoption and you are a legally recognized parent (on the birth certificate or a court order stating you are the parent) you will be served notice.  If you are a putative father (no court order and not on the birth certificate) you may receive notice depending on the state law where the adoption is pending.

“Custody” and “Parental Rights” Are Not the Same Thing

In most custody cases, both biological parents will retain their legal parental rights, even if only one of them has legal or physical custody of the child. For a stepparent adoption to take place, the parental rights of the non-custodial parent would need to be legally terminated.
Typically, this means that the non-custodial parent needs to give their consent to the adoption and voluntarily terminate their legal parental rights. In some situations, the non-custodial parent's legal rights may be involuntarily terminated, if the court has ruled that this is in the best interest of the child.

We're here to answer any questions you have about a stepparent adoption based on your unique circumstances. And, we'll be here to help guide everyone through the process, should you choose to move forward. Schedule your consultation now.

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax