Adoption of De Facto Son after Divorce

[EmanResu]

What is the name of your state (only U.S. law)? Oregon and Washington

Background - Before I married her but while we were together, my ex-wife was allegedly raped and had a son. We married shortly after he was born and never told him that he wasn't mine. (I know now that was poor judgment). We divorced in Washington State in February 2014. The court held that I had a de facto parent relationship and placed my de facto son primarily with me, with regular parenting time with his mother. She moved in February 2 hours away. After she moved, I moved to Oregon. I've been in Oregon now for 5 months. I attempted to adopt my de facto son several times during my marriage but my ex never agreed. I asked during the pendency of our divorce and she said no. I imagine that she would say no if asked.

I want to know if it is possible to legally adopt as a second parent so that for all legal purposes he is my son. I want to do what's best for him. This current role, where I'm not named as a "legal guardian" and not the "natural, biological parent" can make things difficult at times. Some medical providers and the federal government don't recognize me as a legal parent, so I think it would be best if I could adopt. So far there has been a lot of showing of court orders just to get things done. I don't want to waste the money getting things started with an attorney if my answer is just going to be "too bad, so sad."

Since I'll be here for 6 months in February, I believe Oregon would have jurisdiction over the adoption. I've looked at ORS 109.119(5) which states "a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for post-judgment modification of a judgment relating to child custody." So my question, ultimately, is whether it is reasonable for me pursue adoption even over my ex's objection.

ETA: I don't intend to do this by myself. I'll get an attorney. However, I want to make sure my goal is reasonable before incurring the expense and stress and potential conflict with my ex.

Thanks for any advice.

 

[Zigner]

What is the name of your state (only U.S. law)? Oregon and Washington

Background - Before I married her but while we were together, my ex-wife was allegedly raped and had a son. We married shortly after he was born and never told him that he wasn't mine. (I know now that was poor judgment). We divorced in Washington State in February 2014. The court held that I had a de facto parent relationship and placed my de facto son primarily with me, with regular parenting time with his mother. She moved in February 2 hours away. After she moved, I moved to Oregon. I've been in Oregon now for 5 months. I attempted to adopt my de facto son several times during my marriage but my ex never agreed. I asked during the pendency of our divorce and she said no. I imagine that she would say no if asked.

I want to know if it is possible to legally adopt as a second parent so that for all legal purposes he is my son. I want to do what's best for him. This current role, where I'm not named as a "legal guardian" and not the "natural, biological parent" can make things difficult at times. Some medical providers and the federal government don't recognize me as a legal parent, so I think it would be best if I could adopt. So far there has been a lot of showing of court orders just to get things done. I don't want to waste the money getting things started with an attorney if my answer is just going to be "too bad, so sad."

Since I'll be here for 6 months in February, I believe Oregon would have jurisdiction over the adoption. I've looked at ORS 109.119(5) which states "a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for post-judgment modification of a judgment relating to child custody." So my question, ultimately, is whether it is reasonable for me pursue adoption even over my ex's objection.

ETA: I don't intend to do this by myself. I'll get an attorney. However, I want to make sure my goal is reasonable before incurring the expense and stress and potential conflict with my ex.

Thanks for any advice.

You are not a step-parent.

 

[EmanResu]

The text of the code that indicates a stepparent may file for custody modification post divorce shows that the legislature intended the word "stepparent" to apply to a child's parent's ex-spouse even after the divorce.

Is your statement to me to imply that since I'm no longer a stepparent because the divorce is final, I no longer have the right to act under that code section? If so, do you have any case law to support that? Or legislative history? Because I haven't found any and I'd love to read it.

 

[Zigner]

The text of the code that indicates a stepparent may file for custody modification post divorce shows that the legislature intended the word "stepparent" to apply to a child's parent's ex-spouse even after the divorce.

Is your statement to me to imply that since I'm no longer a stepparent because the divorce is final, I no longer have the right to act under that code section? If so, do you have any case law to support that? Or legislative history? Because I haven't found any and I'd love to read it.

Post-dissolution, it seems to apply with regard to custody & visitation - not adoption. You did not start an adoption proceeding concurrent with the dissolution.

You may wish to consult with a local attorney. At this point, Oregon doesn't even have jurisdiction over the child at all, nor are they likely to any time soon.

 

[LdiJ]

Post-dissolution, it seems to apply with regard to custody & visitation - not adoption. You did not start an adoption proceeding concurrent with the dissolution.

You may wish to consult with a local attorney. At this point, Oregon doesn't even have jurisdiction over the child at all, nor are they likely to any time soon.

I absolutely agree that if there is any chance for this to happen, its needs to happen with the help of an attorney. An adoption is never a DIY project and this particular scenario just makes it more complicated.

However...that being said...you ARE the child's legal guardian. You have custody of the child. There are many, many, many people in the world who have custody of children who are not their biological children. If you are having problems then maybe its because you are offering up more information than needed.

 

[EmanResu]

Alright, well thanks for your time. Oregon does have jurisdiction once we've been residents for 6 months for adoption purposes, so next month. The family law court in WA doesn't have jurisdiction over the adoption matter. There's no similar provision in WA law relating to adoption by a de facto parent.

I just want what's best for him and I'm trying to get the legal system to back me up but I'm out of money at this point so trying to do all the research before consulting an attorney.

I'm not named as legal guardian but I have legal custody according to Washington's orders. I'm not the legal parent but I have all the rights and responsibilities of a legal parent. But he doesn't get all the benefits of having me as a parent. Shouldn't he get the benefits too?

Edited: Just saw LdiJ's post. Do I call myself "legal guardian" on forms or "parent"? I've called myself "legal guardian" and they've wanted the orders. When I call myself the "parent" by checking the box, there are no questions but I worry that it's not true.

 

[Zigner]

Alright, well thanks for your time. Oregon does have jurisdiction once we've been residents for 6 months for adoption purposes, so next month. The family law court in WA doesn't have jurisdiction over the adoption matter. There's no similar provision in WA law relating to adoption by a de facto parent.

That is where you are wrong. There are already current orders in place in another state. Oregon is not going to have jurisdiction.

Let me ask you this: Are you trying to remove the mother as a parent of the child?

 

[Just Blue]

Alright, well thanks for your time. Oregon does have jurisdiction once we've been residents for 6 months for adoption purposes, so next month. The family law court in WA doesn't have jurisdiction over the adoption matter. There's no similar provision in WA law relating to adoption by a de facto parent.

I just want what's best for him and I'm trying to get the legal system to back me up but I'm out of money at this point so trying to do all the research before consulting an attorney.

I'm not named as legal guardian but I have legal custody according to Washington's orders. I'm not the legal parent but I have all the rights and responsibilities of a legal parent. But he doesn't get all the benefits of having me as a parent. Shouldn't he get the benefits too?

Edited: Just saw LdiJ's post. Do I call myself "legal guardian" on forms or "parent"? I've called myself "legal guardian" and they've wanted the orders. When I call myself the "parent" by checking the box, there are no questions but I worry that it's not true.

If they need the court order show it to them. Do not state you are the parent as you are not.

Except in your child heart and yours.

Blue

 

[Zigner]

One of the reasons that Oregon won't have jurisdiction is that the other person consenting to the adoption (mom) hasn't resided in Oregon for 6 months prior (not that mom would consent anyway):

http://www.oregonlaws.org/ors/109.309

...
(a) Notwithstanding ORS 109.741 (Initial child custody jurisdiction) and 109.744 (Exclusive, continuing jurisdiction), a court of this state has jurisdiction over the adoption of a minor child if, immediately prior to the filing of a petition for adoption:
(A) The minor child resided in this state for at least six consecutive months including periods of temporary absence;
(B) One parent or another person, who is not an adoption agency, consenting to the adoption as required under ORS 109.321 (Consent to adoption) (1) resided in this state for at least six consecutive months including periods of temporary absence;
(C) The prospective adoptive parent resided in this state for at least six consecutive months including periods of temporary absence and substantial evidence is available in this state concerning the present or future care of the minor child;
(D) It appears that no court of another state would have jurisdiction under circumstances substantially in accordance with subparagraphs (A) to (C) of this paragraph; or
(E) A court of another state has declined to exercise jurisdiction on the grounds that this state is a more appropriate forum to hear a petition for adoption of the minor child and it is in the best interests of the minor child that a court of this state assume jurisdiction.
(b) As used in paragraph (a) of this subsection, periods of temporary absence means periods of absence of not more than a total of 30 days in the prior six consecutive months.

 

[EmanResu]

That is where you are wrong. There are already current orders in place in another state. Oregon is not going to have jurisdiction.

Let me ask you this: Are you trying to remove the mother as a parent of the child?

The attorney I had for my divorce in WA told me that the court did not have exclusive and continuing jurisdiction over a potential adoption, only over the dissolution and parenting plan.

I have no intention of removing his mother as a parent. There's a reason I got primary custody and I certainly think that right now his life is better off with the minimal contact he currently has with her, but she's still his mom and I'm not trying to take that away.

 

[EmanResu]

Thanks, Zigner. I guess that really goes to the heart of my question. If I cannot adopt without her consent, even when I'm not attempting to terminate her parental rights, then she's a party that must consent and must be present in OR for OR to retain jurisdiction over her under 109.309.

Edited: Wait, I just re-read 109.309. That's an "OR" there (see after (D)). That means Oregon does have jurisdiction once my child has lived in Oregon more than 6 months.

 

[EmanResu]

Okay -

Assuming jurisdiction is handled,
Assuming I'm a stepparent entitled to Section 119.105(5) or at minimum there's a good argument to make that I am,

is it fruitless to pursue if I know that his mom will not consent?

 

[Proserpina]

Okay -

Assuming jurisdiction is handled,
Assuming I'm a stepparent entitled to Section 119.105(5) or at minimum there's a good argument to make that I am,

is it fruitless to pursue if I know that his mom will not consent?

I wish I could give you good news, but all I see is heartbreak for both of you. By all means, be Dad to him. Because you have no chance at adoption in this circumstances.

I'm so sorry

 

[EmanResu]

Thanks for the heartfelt reply, Prosperpina.

I'm still trying to navigate this whole grey area of custodial parent but not parent. Just one example: the judge awarded me the right to claim him on my taxes but I don't think I even legally have the option to do that because he isn't a "qualifying child" since I'm no longer his stepparent. There's more and I have new questions almost every day, but he and I are doing great and enjoying life. It's just this darn legal stuff...

 

[LdiJ]

Thanks for the heartfelt reply, Prosperpina.

I'm still trying to navigate this whole grey area of custodial parent but not parent. Just one example: the judge awarded me the right to claim him on my taxes but I don't think I even legally have the option to do that because he isn't a "qualifying child" since I'm no longer his stepparent. There's more and I have new questions almost every day, but he and I are doing great and enjoying life. It's just this darn legal stuff...

I would have to do some digging to make absolutely certain, but very tax professional I am familiar with uses the phrase "once a stepparent, always a stepparent".

However, even if you could not claim him as a qualifying child, he would still be your dependent under the "qualifying relative" provision.