David Cantor explains the Adoption Process For Gay & Lesbian Couples and Termination of Parental Rights in Arizona:
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On October 17, 2014, the State of Arizona announced it would not appeal a federal court decision to allow same-sex marriages in Arizona. This page will explain the Adoption process in Arizona. We know that many Gay and Lesbian couples have dreams of having their own kids and we’ve put together this page on the Adoption process in Arizona. We will keep this page updated as Arizona courts begin to rule on same-sex family law matters.
Information on adoption in Arizona for same-sex couples is separated into two parts: (1) Adoption, and (2) Termination of Parental Rights. Below you will find a general overview of Arizona adoption laws and adoption process, as well as a specific description of the termination of parental rights process. If you anticipate that the (genetic and/or gestational) parent will contest the Adoption, then you must pursue Termination of Parental Rights before adopting. In an “Uncontested Adoption” where the parent will not contest the adoption, then providing there is proper notice given, you can proceed directly to Adoption, and Termination will automatically occur. Since there is a critical difference between Contested and Uncontested Adoption, you should hire a knowledgeable attorney before adopting a child or terminating parental rights in Arizona. If you have questions regarding child custody for same-sex couples in Arizona, please click here. Whether in the Phoenix metro area or elsewhere in Arizona, feel free to contact The Cantor Law Group or call us at (602) 254-8880 at your convenience to schedule a Free Consultation!
Adoption in Arizona
Many same-sex adoptions in Arizona occur by same-sex step-parents seeking to adopt their step-children. Another common scenario involves a same-sex couple who seeks to adopt a child either because they cannot have a child of their own or for the greater good of society.
In accordance with Arizona adoption laws, a “Step-Parent Adoption” can be relatively easy if the (genetic and/or gestational) parent of the child will consent to the adoption. At times that parent will also agree to termination of their parental rights but will only be relieved of child support obligations when another person adopts the child. This is also true of grandparents adopting grandchildren, when both (genetic and/or gestational) parents may be ill-equipped or unable to raise the child adequately, and therefore consent to the adoption. Lastly, many young women who get pregnant (i.e. during high school years) are aware that they and their partner are unready to handle the responsibilities of parenting a child and therefore agree to the adoption.
Same-sex adopting parents may be required to complete a pre-placement “Home Study” to prepare for the adoption process. The Home Study is performed by a social worker who interviews the prospective same-sex parents and conducts a background investigation. In addition to familial history, financial history and criminal history, the social worker will also want to have a medical examination conducted. Lastly, the social worker will wish to tour the prospective same-sex parents’ home to ensure they can adequately provide for the potential adoptive child.
The Cantor Law Group will seek to assist in the transition between the (genetic and/or gestational) parent(s) and the same-sex adopted family in the case of a non-relative adoption. In such situations, we can assist with both “domestic” (U.S.) adoptions and “non-domestic” (international) adoptions.
Usually, there are no restrictions to adoption in the U.S., however, it may be a little more difficult for single gay, lesbian persons or married same-sex couples to adopt than married heterosexual couples. In addition, you must be at least eighteen years of age to adopt. In the case of international adoptions, some countries place an upper age limit of fifty years. Also, some countries are unwilling to place a child with a same-sex couple family or a single gay or lesbian adoptive parent. Again, if an adoption involves a relative who consents to Termination of their Parental Rights, then the process is fairly smooth.
If the same-sex adoption involves a child who has been in foster care for several years, then our role at The Cantor Law Group becomes even more critical. We will file immediately to terminate the parental rights of the (genetic and/or gestational) parents in order to accelerate the adoption process. In addition, the State will appoint a lawyer (i.e. a “Guardian Ad Litem“) on behalf of any child to ensure their rights are protected during the Termination of Parental Rights proceeding. This process is also necessary when a relative (or the other (genetic and/or gestational) parent who conceived the child with the relative) are unfit to be parents, but still oppose a Termination of their Parental Rights..
Termination of Parental Rights
In order to proceed with a same-sex adoption in Arizona, the (genetic and/or gestational) parents’ rights to their child must be severed. This process, whether voluntary or involuntary, is referred to as Termination of Parental Right and is governed by Arizona Statute. Even though Arizona has established statutory authority, we are still governed by constitutional principles which have been expanded upon by the U.S. Supreme Court.
The U.S. Supreme Court has held that the interest of a parent in the companionship, care, and custody of their child is a fundamental liberty interest that deserves deference and protection in the absence of a powerful contrary interest. The Supreme Court went on to rule that this is true, unless the parent has never borne any significant responsibility for the child or functioned as part of the child’s family, in which case they have no imaginable interest to claim or protect. The Supreme Court next went on to rule that the Due Process Clause of the U.S. Constitution would be offended if the State attempted to force the break-up of a natural (genetic and gestational) same-sex family, over the objection of the parents and their children, without showing some “unfitness” and only because breaking up the family was thought to be “in the child’s best interest.”
Arizona adopted all of these principles in 1995. The Court held that they never examine the best interest of the child regarding severance until after the parents have been found unfit for parenthood. This means that in order to severe parents’ rights in Arizona you must first show: (1) The parent is unfit and; (2) It is best for the child to sever the parental relationship. In the 2006, the Arizona Supreme Court ruled that there must be clear and convincing evidence to prove “unfitness”, whereas a preponderance of evidence is sufficient to prove “best interests of the child”.
Pursuant to Arizona Revised Statutes §8-533, entitled “Petition; Who May File; Grounds,”
(A) “Any person or agency that has a legitimate interest in the welfare of a child, including but not limited to, a relative, a foster parent, a physician, the department of economic security, or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship alleging grounds contained in sub-section B of this section.
(B) Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following scenarios, and in considering any of the following grounds, the Court shall also consider the best interest of the child.”
11 Scenarios which Justify Termination of Parental Rights
The statute enumerates eleven (11) different scenarios under which parental rights will be terminated due to a lack of “fitness” on the part of the parent.
1. The parent has abandoned the child.
2. The parent has willfully abused or neglected the child, or knowingly put a child in a situation where that could occur.
3. The parent cannot discharge parental responsibilities because of mental illness, history of chronic abuse of dangerous drugs and / or alcohol, and it is reasonable to believe that the condition will continue for a prolonged indeterminate period.
4. The parent is convicted of a felony of such nature as to prove the parent is unfit to have future custody and control of the child, or if the prison sentence of the parent is so long that the child will be deprived of a normal home for several years;
5. The potential (non-gestational) parent failed to file a parentage action within statutory time limits.
6. The putative (non-gestational) parent failed to file a Notice of Claim of parentage.
7. The parents have consented to the adoption or have relinquished their rights to a child to an agency.
8. The child is being cared for by a licensed child welfare agency, and they have made diligent efforts to reunite the child with the family, and, (a) the child was out of the house for nine (9) months or more following a court order or the child was voluntarily placed, and the parent willfully refused or significantly neglected to remedy the separation,
(b) the child has been out of the house for a total period of fifteen (15) months or longer following a court order, or has been voluntarily placed, and the parent has been unable to remedy the separation and the parent very likely will be incapable of taking proper and effective parental care and control in the near future.
9. The (non-gestational) parent is unknown and continues to be unknown following three (3) months of diligent effort to identify and locate the parent.
10. The parent has had the parental rights to another child terminated within the last two (2) years for the same reason and is currently unable to carry out parental responsibilities for the same reason.
11. The child is currently in an out-of-home placement following a court order and the agency responsible for the child’s care diligently pursued reunification services so that the child was returned to the parent from whom the child had been taken, and within eighteen (18) months after the child returned to the parent, the child was again taken from that parent’s legal custody, and is again being cared for in an out-of-home placement supervised by the juvenile court or a licensed welfare agency, and the parent is currently unable to carry out parental responsibilities.
If the State has filed against a parent without their consent, then in addition to any of these eleven (11) grounds, the Court will also consider whether there were any parental reunification efforts and whether the parent participated in those efforts. The first sixty (60) days of the initial out-of-home placement are not considered part of the cumulative time period out-of-house under factor number eight (8).
If Termination occurs during the Adoption phase then it is best to make sure that parentage has been established (especially for children that have been in Foster care for years).
Pursuant to Arizona Revised Statute §8-106(G), in order to establish Paternity, each potential father must be served notice which contains the following information:
1. An adoption is planned;
2. The potential (non-gestational) parent has a right to consent or object to the adoption;
3. The potential (non-gestational) parent must initiate parentage proceedings by statute and to serve the (gestational) parent within thirty (30) days of completion of service;
4. The potential (non-gestational) parent must proceed to judgment in the parentage action;
5. The potential (non-gestational) parent has a right to seek custody;
6. The potential (non-gestational) parent must begin to provide financial support for the child if parentage is established, and;
7. If the potential (non-gestational) parent fails to file a parentage action, and fails to serve the (gestational) parent and proceed to judgment in the parentage action as prescribed by this section, the potential (non-gestational) parent is barred from bringing or maintaining any later action to assert any interest in the child in the future.
Additionally, Arizona requires that a (genetic and/or gestational) parent must be warned by a person seeking Termination of Parental Rights that their failure to appear will result in an automatic “default.” Therefore, once the genetic and/or gestational parent fails to appear, we at The Cantor Law Group will be ready to immediately move to finalize the proceeding to severe their parental rights and establish your right to the child as quickly as possible.
Our firm knows the Arizona adoption laws and we’re willing to sit down with you for a free initial consultation. Our offices are available 24 hours a day at (602) 254-8880 or by sending us a confidential email.