When a married couple adopts a child, it is well-known that the couple becomes the legal parents of the child for all intents and purposes. But, what happens if the couple, after adopting the child, separates and divorces? What happens if the couple divorces prior to the adoption being finalized? Still, what happens if a couple, with a shared biological child, divorces and one of the biological parent’s new husband or wife now wants to adopt the child? We aim to address what happens when these types of scenarios occur in New Jersey and Pennsylvania in this article.
The Legal Effect of Adoption Generally
In both New Jersey and Pennsylvania, once a child is adopted, the person or people adopting the child becomes the legal parent or parent of that child and the biological parents no longer have a claim to the child. This means that the child, although adopted, is treated under the law as having the same rights and obligations as a biological child. One of these rights includes the ability to inherit from the adoptive parent or parents upon their respective deaths.
Adoption also means, however, that the adoptive parents also have a duty to that child just as they would if the child were their biological child. These duties include appropriately caring for the child and being financially responsible for the child.
The Legal Effect of Divorce on a Finalized Adoption
When an adoption is finalized, the adoptive parents are the legal parents of the adopted child. Because of the permanent legal relationship that forms between the adopted child and the adoptive parents when an adoption decree is signed, the obligations of the adoptive parents do not end should the adoptive parents get divorced from one another. Rather, when adoptive parents get divorced, adopted children are treated the same under the law as biological children under both New Jersey and Pennsylvania law. Like with biological children, the adoptive parents would have to work out a child custody arrangement by coming to an agreement with one another or by suing the other for custody in court. Additionally, like with biological children, adoptive parents who divorce after the adoption has been finalized can sue for child support if they are the parent that retains primary physical custody of the adopted child.
The Legal Effect of Divorce on an Adoption Proceeding that is not Finalized
In some circumstances, the adoptive parents may decide to divorce before the adoption proceeding concerning their prospective adopted child is finalized. If this occurs, then a litany of things can happen. The first thing that can happen is that the birth parents of the child may want to cease the adoption proceeding because of the divorce. If this is the case, then the judge presiding over the proceeding will make a determination as to whether the adoption can continue. The second thing that can happen is that, despite the divorce, the birth parents may still consent to the adoption. If this is the case, the judge presiding over the adoption proceeding will make a determination as to whether the adoption can continue.
Irrespective of the birth parents’ consent, if the prospective adoptive parents get divorced before the adoption is finalized and one or both of the adoptive parents decides they no longer desires to adopt the child, they may withdraw or cease adoption proceedings and will obtain no legal consequences respective to the prospective adopted child. In other words, the adoption proceedings can be halted or ceased and the prospective adoptive parent who no longer desires to adopt will not be considered the legal parent of the prospective adopted child.
If a judge allows the adoption to proceed and one prospective adoptive parent decides to continue with the adoption proceeding after the divorce is finalized, but the other does not, then the prospective adoptive parent that continues to proceed will be the only prospective parent of the two to become the legal parent of the adopted child upon the adoption’s finalization.
However, if both prospective adoptive parents agree to continue with the adoption proceeding even after their divorce to one another is finalized and the judge allows the adoption to proceed, both adoptive parents will have the same rights and responsibilities to the adopted child once the adoption is finalized.
The Legal Effect of Divorce and Remarriage on Shared Biological Children
When parents get divorced, they continue to be the legal parents of their shared children. This is the case even if one or both of the parents remarry. However, there are some instances in which one parent may try to terminate the rights of the other parent in an effort to allow his or her new spouse do a second parent adoption of the children. If one of the biological parents abandoned their children for a specific period of time after the divorce occurred, if that parent abused the children, or if that parent committed certain enumerated specific crimes, New Jersey and Pennsylvania law allow the other biological parent may file a petition to involuntarily terminate the parental rights of the offending parent with a court that may exercise authority over the parties or child. Of course, the offending parent may also decide to voluntarily relinquish his or her parental rights, but this type of proceeding is rare.
If one of the parent’s rights are involuntarily or voluntarily terminated, then the new spouse of the parent retaining his or her parental rights may, with their spouse, file a petition for adoption. If this petition is granted, then the new spouse will become the second legal parent to the child and, if the new spouse and the biological parent divorce, then both will have equal custody rights and support obligations to the child.
Contact a Cherry Hill Family Law Attorney for a Consultation About Adoption and Divorce in New Jersey and Pennsylvania Today
If you are thinking about filing for divorce, or if you have already started the divorce process and are dealing with another matter such as adoption, child custody, child support, or division of assets, you need to speak with a qualified attorney. The New Jersey and Pennsylvania family law attorneys at Begelman & Orlow represent clients throughout the both New Jersey and Pennsylvania, including Cherry Hill, NJ Camden, NJ, Philadelphia, PA and Conshohocken, PA. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (866) 627-7052 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 411 Route 70 East, Cherry Hill, NJ 08034, as well as offices located in Conshohocken, PA.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.