Misuse of Adoption Affecting Economic Rights

Courts generally prohibit parties from using the adoption process to achieve purposes that would have a detrimental economic effect on the children involved. An attempt by a birth parent to adopt his or her own children for the purpose of terminating the other birth parent’s relationship with the children is a misuse of adoption. Also, an agreement to release birth parents from support obligations in exchange for t heir consent to an adoption is a misuse of adoption.

Use of Adoption to Terminate Another’s Parental Relationship

Adoption statutes are often drafted in broad language that appears to permit a birth parent to adopt his or her own child, but most jurisdictions hold that a birth parent may not adopt his or her own child except where the child is born out of wedlock. If a child is born out of wedlock, adoption offers a means to establish a parent-child relationship that may not legally exist; the child thus is given greater rights, including economic rights, than it had before the adoption.

If the child is born in wedlock, the legal parent-child relationship already exists, and an adoption would actually terminate that existing relationship, along with all the rights the child enjoys as a result. Attempts by birth parents of a child born in wedlock to terminate the parental relationship between the child and the other birth parent by means of adoption have been rejected as a misuse of the adoption process. It has been held that a birth parent cannot adopt his or her own child solely for the purpose of terminating the other birth parent’s rights, because while an adoption ordinarily has the salutary effect of conferring the legal rights and duties of the parent-child relationship on the child and the adoptive parent, an adoption by one of the birth parents reduces the child’s legal rights because it severs all economic ties to the other birth parent. It is for this reason that some courts make the parents’ financial condition a factor in determining whether a consensual petition to terminate the parent-child relationship is in the child’s best interest.

While a birth parent’s failure to pay child support may support a finding of neglect and hence a termination of parental rights and granting of an adoption, such a failure of support is merely one factor among many in determining this issue. This factor alone is not a controlling factor.

Adoption as a Means of Extinguishing Child Support Obligations

It is against public policy to use child support as a bargaining chip in order to obtain a birth parent’s consent to an adoption. Courts look with disfavor on payments of compensation to a birth parent in exchange for that parent’s consent to an adoption, including payments in the form of relief from past and future obligations to pay child support. This is true whether or not there is a second parent who is available and willing to step in and take over the responsibility of the consenting birth parent.

A mutual agreement between birth parents to terminate the parent-child relationship of one of them is void and unenforceable if it will result in a detriment to the child. The termination of a father’s parental rights based on a convenient mutual agreement of the parents has been held improper because losing that source of support was against the child’s best interests, and it also foreclosed the state’s ability to recover from the father any support monies it had dispensed to the child under a governmental benefits program. Additionally, it has been held improper and a sham for birth parents to consent to a child’s adoption in order to relieve the biological father of his support duty where the child’s mother proceeded to petition the court to readopt her child.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.