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Do I still need the other parent’s consent to a stepparent adoption if they are incarcerated?

Learn more about parental consent and termination of parental rights when a stepchild’s biological parent is in prison.

Your ex is not involved in your child’s life because he or she has been convicted of a crime and is incarcerated. Meanwhile, your current spouse has stepped into a parental role. You want to move forward in a positive manner and believe that a stepparent adoption is the best decision for your child. You may wonder if you need the incarcerated parent’s consent for a stepparent adoption. The answer is yes. Just because the other parent is serving time in prison does not automatically mean that they have lost their parental rights.

A Consent to Adoption can be executed at a Prison Facility.

Parents who are incarcerated can sign a Consent to Adoption if they are in agreement with the stepparent adoption. Arrangements can be made with the prison so that the Consent can be signed and all of the statutory requirements can be met. Once the incarcerated parent has signed a Consent, you can move forward with the adoption process.

What happens when the incarcerated parent will not agree to sign a Consent? If the other biological parent will not cooperate with the adoption, then you will need to ask the Court to waive their consent.

Abandonment as Grounds for Termination of Parental Rights

If your child’s biological mother or father has not been involved in your child’s life and refuses to sign a Consent for adoption, we can ask the Court to waive that parent’s consent-based upon abandonment. The Court will evaluate many factors in making this decision, including whether the biological parent’s actions demonstrated a willful disregard of the safety or welfare of the child. The Court will evaluate whether the biological parent has failed to provide for financial support or pay for medical treatment even though they were able to pay. If the biological parent has paid financial support or medical expenses, the Court will determine if the amount paid was appropriate considering the child’s needs and the parent’s ability to pay. If the biological parent is incarcerated, the Court may not find that they had the ability to pay support or medical expenses. If there was no ability to pay, then abandonment cannot be found.

What if the other parent’s involvement with your child has been minimal prior to their incarceration? The Court can look to see what effort the parent has made to communicate with the child both before going to prison and after. If the biological parent’s efforts at communication with the child prior to incarceration were only marginal and did not show a settled purpose to assume all parental duties, the Court can find abandonment. If a parent is found to have abandoned a child, their parental rights can be terminated and their consent is unnecessary for stepparent adoptions.

Is the fact that the other parent is prison enough for termination of parental rights?

It is possible that the Court may find abandonment and terminate the other parent’s rights because of their incarceration. The Court will consider many factors, including if the other parent will be in prison for a large portion of your child’s childhood. The Court will look at your child’s age and will also take into account your child’s need for a permanent and stable home. Another consideration will be if the incarcerated parent has been determined to be a violent career criminal, a habitual violent felony offender or a sexual predator. The nature of the other parent’s conviction will be taken into account. Abandonment can be found in your child’s biological father or mother has been convicted of child abuse, first-degree murder, second-degree murder, sexual battery that constitutes a capital, life or first-degree felony. It does not matter if the other parent is incarcerated in Florida, a different state or even a different country.

The Court could also terminate the other parent’s parental rights if it finds that continuing the parent/child relationship with the parent who is in prison will cause your child harm. There is no hard and fast rule as to what type of parental relationship would be harmful to your child. The Court will hear all of the testimony and review all of the evidence presented in making this determination.

Contact Julie Beth Jouben P.A. for More Legal Information About Termination of Parental Rights

Florida takes the parental rights of biological parents very seriously. The Court will not terminate parental rights without clear and convincing evidence. If you are considering a stepparent adoption and the other parent is incarcerated, you should consult an adoption attorney to help you determine how to proceed.

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