Can I adopt my boyfriends son?

Recently on our legal forum a user asked, “I am living with my boyfriend. We are planning to get married, but I am wondering if I can legally adopt his eight year old son now before the wedding?”

Has the biological mother terminated her parental rights?

Whether or not you will be legally allowed to adopt your boyfriend’s son will depend on the laws of your state, which we will discuss in more detail below. All states, however, will require that the parental rights of the maternal mother have been terminated prior to any type of adoption.

Courts are in the business of protecting the rights and interests of children. Courts also know that a child’s interest are generally best served with two parents in the home. With this in mind, they are reluctant to terminate parental rights. Parental rights can, however, be terminated either voluntarily or involuntarily for a number of reasons including the following:

• Abuse/Neglect
• Mental Illness or Deficiency
• Alcohol or Drug Induced Incapacity
• Abuse/Neglect
• Loss of Rights of Another Child
• Sexual Abuse
• Child's Best Interest
• Felony assault of a child
• Sibling Murder/Manslaughter of sibling child

The easiest way to terminate the biological mother’s rights is to have her agree to the termination and petition the court together with the biological father. The court will then review the petition and determine whether it is in the best interest of the child. They will do this by reviewing a variety of factors including the child’s age, the child's preferences, and the physical, emotional and mental well-being of the child.

Now, ideally, you and your boyfriend would get married and then you could petition to become the child’s adoptive parent. This is by far the easiest way to adopt a child, and increases the chances that the court will agree to the termination of the biological mother’s parental rights. In the court’s view, they may be terminating one mother’s rights, but the child has another parent waiting in the wings- so to speak- who is ready to provide maternal care to the child. 

What if you are not married?

Whether or not a court will allow you to adopt your boyfriend’s son without first being married to him will depend on your state’s laws. For more information you will need to discuss your case with a family law attorney who is familiar with the laws of your state. 

All states have adoption laws which are codified in state statutes. Just to give you an example we will review the adoption statutes for New York and for Texas.

In the State of New York the adoption statute is found in Dom. Rel. Law § 110. It specifically states that an adult unmarried person, an adult married couple together, and any two unmarried adult intimate partners together may adopt. Additionally, an adult married spouse who is separated for three years may also commence an adoption proceeding and an adult married couple may also “adopt a child of either of them born in or out of wedlock and an adult or minor spouse may adopt such a child of the other spouse.”

Texas adoption laws are found in Fam. Code § 162.001 and state that any adult may adopt, assuming the rights of the parents have been terminated, or the parents whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption, or the child is at least 2 years old, “the parent-child relationship has been terminated with respect to one parent; the person seeking the adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of 6 months preceding the adoption; or is the child’s former stepparent; and the nonterminated parent consents to the adoption.”

Additionally, adoption may be allowed if “The child is at least 2 years old; the parent-child relationship has been terminated with respect to one parent; and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of 1 year preceding the adoption.”

Bottom line:

State laws will determine whether you can adopt your boyfriend’s child without being married to your boyfriend. Regardless of the laws, however, the courts will always consider what is in the best interest of the child.