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adoption, step parent, step-parent, stepparent, grand parent, grandparent, relative, relatives, birth father, biological father, abandonment, non-support, relinquishment, termination, terminate, petition, parental rights, Colorado Springs, Colorado, El Paso County, courts, court, lawyer, attorney
The non-residential birth parent executes a document relinquishing his or her parental rights. The parent will be advised of his or her right to contest termination of parental rights, right to trial and representation by counsel. Any consent must be freely and voluntarily given, without undue influence, duress, coercion or fraud. Local courts have approved a residential birth parent offering release of liability for past due child support in return for the non-residential birth parent's relinquishment. That offer, combined with an advisement the adoption will be processed on involuntarily termination with subsequent suit to enforce support arrearages may be an inducement to the non-residential birth parent to execute a relinquishment. Waiver of support arrearages need not be offered. No parental waiver can affect, nor prejudice any claim or cause of action of any State or County governmental agency arising out of an assignment of rights to child support relative to welfare benefits received by that parent or any third person on behalf of a child. The offer to waive child support arrears or expenses of confinement and delivery must be made expressly excluding any such governmental claims. The residential parent should be careful in making any offer to waive support arrearages to include a date on which the offer is automatically withdrawn without further notice. This precludes the non-residential parent from accepting the offer after involuntary termination of his or her parental rights. The offer should also be expressly contingent upon entry of the termination and adoption decrees. If a written relinquishment is received from the non-residential birth parent, on the date set to finalize the adoption decree no matters remain clouded. Even though the consent could be withdrawn at the last minute, consent usually places the adoptive family in high spirits before the hearing.
For whatever reason, the non-residential birth parent fails or refuses to execute a document relinquishing his or her parental rights. The petitioner must establish by clear and convincing evidence at hearing 1. No child support whatsoever has been received for a period of 12 consecutive months immediately preceding the filing of the lawsuit. 2. Failure to pay reasonable support was without cause; the non-residential birth parent had the ability to contribute reasonable support. Contribution need not be the full amount of the support ordered to constitute payment of reasonable support under the circumstances. Karaken v. Valdesuso, 33 Colo. App. 47, 50, 515 P.2d 128, 130 (1773). Colorado courts have held that failure of a prisoner in the state penitentiary earning $1.50 per day to contribute anything to child support was not just cause; he had the ability to contribute reasonable support from his meager earnings. In re R.H.N., 710 P.2d 482 (Colo. 1985). 3. There is no reasonable likelihood that the non-residential birth parent will provide future child support. Past conduct is the polestar. 4. The non-residential birth parent has abandoned the child. 5. The best interests of the child will be served by the adoption. If the petition alleges non-support, this attorney prepares an arrearage computation which includes each child support payment due for the period commencing the date ordered to the date of adoption lawsuit preparation, each payment received, and interest computed at the statutory rate (Colorado 12% per annum) based upon irregular transactions. With the computation the court can easily ascertain the periods of non-support and total arrearage amount. The non-residential birth parent obligor is advised of the alleged arrearage for which he or she is obligated and which may be enforced absent waiver by the obligee. Refer to the support enforcement page.
In determining the best interests of the child, the court may consider among other factors, family stability, the present and future effects of adoption, including the detrimental effects of termination of parental rights, the child's emotional ties and interaction with the contestants, the adjustment of the child to the living situation, the child's age, and the mental and physical health of the parties. Frequently attorney's see a situation where the non-residential birth parent has failed to maintain physical visits or telephone contact for a period of time, failed to send birthday or holiday cards, failed to communicate by letter, and has failed to provide any support. These are facts you should document, and you should provide any cards or correspondence to your attorney. Positive factors of the interaction between the child and the adoptive step-parent include support he or she has provided, maintaining a home for the child, common activities and interests shared between them, assistance with homework, attendance at school activities or transport for medical or dental care, conversations regarding important life events and maturation, and the like. The court will look to see if the adoptive step-parent has in fact established and fulfilled the role of a parent to the child.
1. Adoptive parent and spouse
birth parent: 2. Child 3. Prior court orders regarding
custody, guardianship or support 4. Other children of adoptive
parent or spouse birth parent 5. Non-residential birth parent 6. Circumstances surrounding an offer, if any, of the residential birth parent to waive child support arrearages in return for the non-residential birth parent's relinquishment. 7. Consent of residential birth parent spouse to the adoption. 8. Consent of the child to be adopted if age 12 or above. (Little ones seem to get a kick out of signing a consent, even with crayon drawings) 9. Petitioner adoptive parent, residential birth parent spouse and child are residents of the county and state in which the petition is filed to confer jurisdiction and venue. 10. Petition is filed in good faith for the purpose of building a nuclear family, not for an illegitimate purpose such as vendetta or to gain access to a child's assets. 11. The best interest of the child will be served by the adoption. 12. By statute: whether the prospective adoptive parent was convicted at any time by a court of competent jurisdiction of a felony in one of the following areas: child abuse or neglect; spousal abuse; any crime against a child; or any crime involving violence, rape, sexual assault, or homicide, or other physical assault or battery. In addition, the petitioner shall attach to the petition a current criminal records check, paid for by the petitioner. I also include similar information reported by the client regarding the residential birth parent or non-residential birth parent, except that criminal records histories are not attached for the residential birth parent or non-residential birth parent unless such crimes exist. 13. Whether or not the adoptive step-parent has ever been delinquent in child support regarding another child for whom support was ordered, or whether the adoptive step-parent has ever relinquished parental rights regarding another child with whom he had a legal parent-child relation. 14. A statement of all attorney's fees charged or costs relative to this adoption must be filed, as well as a statement of any amounts given to the non-residential birth parent or any other third person. The legislature's intent was to avoid black market babies - CRS 19-5-213 above.
The adoptive step-parent will file a petition asking the court to approve placement, terminate the legal parent-child relation of the non-residential birth parent and to grant a decree of adoption establishing the legal parent-child relation between petitioner and the child. Adoptions are filed in juvenile court; e-Filing is not available at this time. Upon filing, the court will review placement and enter an order regarding approval. A return date on the petition will be set by the court. The non-residential birth parent is entitled to 20 days notice if a resident of Colorado, 30 days notice if a resident out of Colorado. I generally set that return date 75 - 90 days after filing to allow time for service of process and response time to elapse on interrogatories and requests for admissions. If the non-residential birth parent has failed to file a response or otherwise contact petitioner, counsel or the court, the court will hear the merits of the case at the return date. A decree may enter terminating the parent-child relation of the non-residential birth parent and a separate decree may enter granting the adoption. The client is provided with certified copies of each decree. A certified copy of the decree of relinquishment or termination is sent to the non-residential birth parent. Juvenile court has exclusive jurisdiction in adoptions. Proceedings are closed to the public - the courtroom doors are actually locked to preserve confidentiality. At the final orders hearing, the court will usually permit admittance of family members if requested by the parties. The child can be kept in the hall and shielded from termination testimony, however must be physically present during adoption testimony. Courts frequently permit camcorder recording, or still photographs. After entry of orders, it has been my experience that juvenile magistrates may be most willing to have the child placed in his or her lap for a photograph at the bench with family members surrounding the Court. Kids have been able to pound the gavel and play judge. I've seen juvenile magistrates present a cupcake, light a sparkler or waive a magic wand. This is a joyous event. Don't forget your camera. If I provide representation, at final hearing I would bring a digital camera to memorialize the occasion & provide pictures to the client on CD. That service would be free in celebration of the adoption. A certified copy of each decree is sent to the state agency which entered the original birth certificate. A new birth certificate is prepared reflecting the adoptive step-parent and spouse birth parent as birth parents for the child. The original birth certificate is sealed and not accessible pursuant to CRS 25-2-113 In the adoption decree, the child's first and middle names may be retained, or may be changed. The surname is frequently changed to that of the adoptive parent, however that also is parental choice. You should consider names. If the child is not an infant, consult the child and perhaps a child psychologist. Change of identity by changing the first and middle names is a family decision, but may not be a good idea. An adoption should be commenced for the purpose of building a lawful, nuclear family. Usually the family exists in fact long before an attorney is contacted, and the purpose is simply to give that family legal existence and validity. However, an adoption should never be commenced as a means of punishing the absent birth parent.
Once final orders are entered, the adoptive step-parent becomes a lawful parent as though he or she were a birth parent of a child born in lawful wedlock. Should your marriage later fail and dissolution of marriage proceedings be commenced, the adoptive parent has equal standing for allocation of parental rights and parenting time (fka custody and visitation). By the same token, he or she will also be held to the same standard as any other parent for child support. Regardless of the spouse birth parent's income capacity, you can not say oooops, judge this adoption was a mistake and let's set it aside - he or she doesn't need the support. Set aside does not happen. Succinctly stated. Be certain of your purposes and marriage stability.
In cases where the adoptive parent is the step-father, this attorney has encountered statements from the spouse birth mother that she was uncertain as to the identity of the birth father. That is not acceptable. In such a circumstance, each man with whom she had sexual intercourse at or near the time of conception must be served as a putative (alleged or possible) birth father. This attorney has also been advised the location of the non-residential birth parent is unknown. That also is not acceptable. You can't hide the adoption from the birth parent. The non-residential birth parent must be given notice of the proceedings to terminate his or her legal parent-child relation. Constitutional due process (fairness) mandates notice. If you are unable to personally serve the non-residential birth parent, publication in the local newspaper will be ordered. That is called constructive notice, the best notice that can be given under the circumstances. Before you publish, you must file a motion for publication with the court, accompanied by an affidavit of the efforts made to locate the non-residential birth parent. If the court finds reasonable efforts have failed to locate, an order for publication will enter.
If the non-residential birth parent is willing to sign a paper saying he or she received the legal documents, you can use the mail and there is no charge for service of process. That is called waiver and acceptance of service of process. Parents whose rights are being terminated don't sign. I don't recommend attempting waiver of service. Attempted wavier of service only sets up expense of re-preparing the suit for service and necessity of re-setting the court return date. Notice is best accomplished by personal service - a person unrelated to the litigation physically hands the non-residential birth parent a copy of the lawsuit documents which include the court return date, then provides an affidavit of service of process. Once the non-residential birth parent has been given personal service notice of the lawsuit and the return date, he or she is then precluded from a later collateral attack based upon lack of notice. If I am your counsel, I require that back door be closed. I will utilize the services of a private investigator to locate the non-residential birth parent and provide notice by personal service. If a client declined investigator services, I would refuse or withdraw representation. * * * * * * * *
* * * * * * * * If communication lines are open, I ask the residential birth parent to contact the non-residential birth parent to ascertain whether he or she would agree to a relinquishment. If effective communication does not exist, no contact should be made. After that initial phone call, it is usually best that neither the adoptive step-parent nor the residential birth parent have further contact. It is important to avoid allegations of duress, coercion, undue influence or fraud. Keep your long distance phone bills as evidence of phone calls or lack thereof. Investigator skip tracing can involve significant expense. When confronted with the skip tracing or investigator financial burden and knowledge that the adoption is subject to being set aside absent actual notice, former clients have somehow found information to aid in service of process on the non-residential birth parent. Similarly, when confronted with knowledge of potential later collateral attack, the identity of the non-residential birth parent has somehow become apparent. If publication notice were to be utilized, the supporting affidavit of the residential birth parent combined with an investigator's affidavit of location efforts would provide the best protection possible against collateral attack. Thus far, in each of my step-parent adoption cases notice has been given by personal service. I plan to keep it that way - no client wants his or her heart-ache broadcast in a TV movie. Here, an ounce of prevention is indeed worth a pound of cure. Service of process on an average costs around $85, but can vary. Service is frequently accomplished out of state and expense varies widely with region or distance the process server or investigator must travel to remote locations. For some unexplainable reason, the birth parent being served in several of my cases has lived out in the toolies where the buses don't run.
For purposes of this webpage:
Designated grandparent or relative adoption is a hybrid between the straight adoption and step-parent adoption process.
No placement of any child legally available for adoption shall be made for the purposes of adoption except by the court, the county department of social services, or a licensed child placement agency. CRS 19-5-206(1) Birth parent or parents may designate a specific applicant with whom they may wish to place their child for purposes of adoption. After assessment and approval of the potential adoptive parents and subsequent relinquishment of the child, the court shall grant guardianship of the child to a person or agency described in section 19-5-104 (1) until finalization of adoptive placement... All requirements and provisions of this article pertaining to relinquishment and adoption shall apply to designated adoptions. CRS 19-5-206 (2) (a) Where grandparent or relative adoptions differ from a non-relative straight adoption:
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Herein comes a major difference between step-parent adoption and grandparent adoption. Except in step-parent adoption, the Colorado relinquishment statute, provides for relinquishment counseling. This includes grandparent or relative adoption. Refer to the link to read the statute, or Colorado Revised Statutes (CRS) are available in the local law library supported by the El Paso County Bar Association - you may ask a librarian for assistance in locating statute books. CRS 19-5-103(1)(a) provides any parent desiring to relinquish his or her child shall obtain counseling for himself or herself and the child to be relinquished as the court deems appropriate. The relinquishing parent and petitioning grandparent or relative may request that the court waive relinquishment counseling, however other language contained in the statutes and Birth Parent's Relinquishment Affidavit emphasize relinquishment counseling. Litigants should anticipate that the request will be denied and that proceedings will be stayed until relinquishment counseling has been conducted by an adoption agency - licensed child placement agency. The cost of relinquishment counseling may exceed $1,200. Call any agency for prices. For a listing of Colorado Child Placement Agencies, you may contact the El Paso County DHS - fka DSS or the Colorado State Department of Human Services. Attorney Note. Representing an adoptive grandparent or other relative, on the conservative side I advise my clients that relinquishment counseling for the relinquishing birth parent is prudent. If the relinquishment counseling is conducted, a door is closed to possible subsequent collateral attack. If not conducted, the relinquishing parent could potentially later claim he / she did not have a full understanding of the consequences and ramifications of his or her relinquishment act and due process protections were not afforded. Pay for and have the birth parents complete relinquishment counseling before you commence the relinquishment and adoption legal proceedings.
Review wills, trusts or life insurance policies. Your circumstances will be changing; you will need to amend beneficiaries or your entire estate plan. You may also wish to review your needs for powers of attorney, child guardianship and conservatorship, a medical or surgical treatment declaration (life support) or anatomical gift declaration. I do not practice probate or estate planning; contact your estate planning attorney.
The goal of adoption is to create a nuclear and legal family, however an unpleasant adoption issue should be addressed. Can an adoptive parent fail to bond with a child or vice versa? Yes. Some adoptions are interrupted, that is to say the placement is terminated before final decree because the family is not able to bond. In other circumstances, a parent leaves after the adoption is final, abandoning any relationship with the child. Naturally that is not the desired or intended outcome. Adoption is neither a better way, nor a worse way of building a family than by birth parentage. It's simply different. An adoption does not make a child special - each is special and unique unto himself or herself during each phase of development - this does not originate with status as an adoptee. This celebration of individuality applies to all children. Adoptive parents choose to adopt. Some birth children are planned, and some arrive not by conscious choice. Adoption does not elevate, demean or denigrate the status of a family. Other children's words can be cruel, but with knowledge, your child's self esteem will survive quite well. If the child is young, parents must decide whether to disclose the adoptive status, and if so, when. If the adoption is treated as merely another daily fact of life, that may engender trust and open communication with your child about the adoption as well as other matters. Each family must make their own decisions. I recommend families affirmatively decide now. Lack of decision is in itself a decision. At some point the child will likely have issues to resolve surrounding the birth parent's relinquishment or abandonment. A child may fantasize about the absent birth parent, assigning super-human characteristics or perhaps undue negative aspects. Books are available in public libraries, and it may be a good idea to touch base with a professional counselor. I understand that with open communication, adoptive children will do fine and have a positive self-image. How parents deal with adoption issues and communicate will likely have great weight. Some children wish to seek out the absent birth parent, and some have no desire. Numerous persons have shared with me that they were adopted themselves. Contrary to the images conjured by TV programs, each has indicated their adoptive family was there for them and nurtured them, having no desire to contact the absent parent(s). If the adoptive parents are secure in their parentage and not threatened by birth parents or possible future relationship, willingness to assist in locating the birth parents at an age appropriate time and granting decision making ability - options may empower the child and help to make him or her secure with self. A meeting with birth parent(s) may or may not ultimately prove to be positive. I doubt there is a "right answer," but think these are decisions which must be weighed in each family created by adoption. You should prepare yourself to make decisions on similar issues which are right for your family. Should you choose to pursue adoption, I wish you the best with your new family.
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