Termination/Adoption

What is the name of your state? Texas

Situation: My live-in boyfriend has a 4 year old son, whom I have been mother to for about 2 and half years. His son was born in December of 2000 at which time my boyfriend was not aware that the child was his. At this time, his son was born addicted to a controlled substance. He was taken away from biological mom the day of birth and brought into the care of Child Protective Services (CPS). He lived with a foster family for about a year and half. My boyfriend was notified in October of 2001 about the child. After determining the child was his, he worked with CPS to get custody of him. In May of 2002, my boyfriend gained custody of his son. At this time, his son came to live with us. After biological mom found out my boyfriend obtained custody of their son, she wrote two letters regarding seeing the child. After that, we never heard from her again until now (3 years later). She recently sent a letter regarding same. She has been on the run for some time now and has now been caught by authorities. She is currently incarcerated and will be serving a 10 year sentence. We have been searching for her in regards to changing the child's name. He was given her name at the time of birth, since she did not know who the father was. My boyfriend will now like for his son to have his name.

First: If she does not give consent to change his name (she probably won't), is it likely that the court will still grant the change despite her not giving consent?

Second: Will the court terminate her rights based on the fact that she has never cared for the child, and she never will due to her drug addiction and prison sentence? (Her rights were involuntairly terminated from another one of her sons because of the same reasons.)

Third: I would like to adopt my boyfriend's son. The problem is he will not give consent to do so until we are married. We will not be getting married anytime soon. I want to adopt him right now while we have biological mom in site and reach. I have been the only mother his son has ever known, and I want to continue to be even if his father and I do not stay together in the future. I care for his son just as much as he does. He is my life. Would it be possible to adopt his son even though my boyfriend will not give consent and in the even that biological mom's rights are terminated?

After researching the family codes/laws dealing with these 3 issues, it appears that all can be resolved in our/my favor without consent. On the other hand, I am not an attorney; therefore, I may not be interpreting the laws correctly.

Please advise.

Thank You.

Yes the name change can be done even without her consent..

Yes, In Tx. her rights can be terminated. Seeing as the state took the child in the first place it would not be smart for boyfriend to allow son to see the other at all without a court order making him and even then there would be evaluations done. If he does allow contact and/or for mom to see child the state could take that into consideration and your boyfriend be in trouble.

As far as the adoption issue, even if dad isn't consenting to it then no it will not happen and in most situations (not all as some are different) you would be required to be married first, but again, dad would have to consent to that.

More thoughts:

Texas Family Code 162.001: Who may adopt?

(4) 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 one year preceding the adoption.

What do you interpret from this law? I think it could pertain to my situation in the sense that I have taken part in caring for the child. I am not a stepparent, but I am the only mother he knows. I know I bent this law a little bit; it's the only one remotely close to my situation.

In Texas, I believe we have this common law wife/husband law or something. If you live with someone for six months or so, you are considered just that.

162.010: Consent required.

(a) Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed. The court may waive the requirement of consent by the managing conservator if the court finds the consent is being refused or has been revoked without good cause.

Though it appears to be a slim chance the court will waive consent, they must have put this in the family code for people in my situation. What do you think?

As you can see, I am desperate not to lose him.

Thanks.

It doesn't matter what that law says. Dad has custody, Dad is raising this child and Dad has said no to the adoption. What you are saying is that you are trying to force Dad to consent or have it done against his wishes. That's not a smart move to make, if you really care about this child you would let this go because if you don't it can and will backfire on you. You have no legal standing as of now and if you push Dad it will affect your relationship and he has EVERY right to keep the child from you... then where does the child benefit?

That portion of the Texas Adoption Code does not apply even slightly to your case.

Adoptions are creatures of statute and it must be followed EXACTLY!

As you have been told, you have absolutely no legal standing in this matter until you marry him. Then if he consents, you can try for a step-parent adoption. But, you need to have a stable marriage first. That means, don't marry and file for adoption within the first year or two.