Every step-parent adoption has its own unique set of circumstances and facts, and many factors go into determining whether your spouse can adopt your child.
 
It is not possible, in a short article, to cover all of the nuances surrounding step-parent adoption.  This article addresses only the most commonly asked questions, and the answers are very basic.  If you are interested in learning more information about a step-parent adoption, I highly recommend that you contact an experienced adoption attorney.
 
The following are some typical questions I have received while facilitating step-parent adoptions for more than 25 years:
 
Q:           My child is two years old.  He has never met his biological father.  I was married to his father, but when I told him I was pregnant, he ran off and I never heard from him again.  I am now re-married and my new husband wants to adopt my child.  Do I need to get his biological father’s consent for my new husband to adopt my son?
 
A:            Without knowing any other facts, probably not.  The legal father has a duty to emotionally and financially support his child.  If he was married to you at the time you got pregnant, he is the legal father.  If he fails to support his child, either emotionally or financially, for a period of one year before your current husband files the adoption petition, you probably do not need the legal father’s consent to go forward with the adoption.

 

Q:           My ex-husband and I had a child.  According to the divorce decree, he must pay me child support for our child’s benefit.  This child support is automatically taken out of his paycheck.  If the money were not automatically taken out, he would not pay me anything at all for raising his child.  He has never tried to establish an emotional relationship with our child; he hasn’t even sent a card or a letter.  He is entitled to visitation according to our divorce decree, but he never contacts me to see our child.  Our child is now two years old and it has been more than a year since I heard anything from my ex.  My new husband wants to adopt my child.  Do I need my ex-husband’s consent?

 
A:            Although your child’s biological father is fulfilling his duty to pay child support, he has apparently neglected his duty to emotionally support the child.  The factors in an adoption case vary, and the subtleties can be very important. However, if you have not done anything to prevent your child’s biological father from emotionally supporting his child, then you probably do not need his consent to go forward with this step-parent adoption.

 

Q:           My child’s mother dropped our child off at my doorstep when he was three months old.  I haven’t seen her since, and she has never once attempted to see our child, who is now two years old.  Our child’s mother does send checks every month and has done so for the past two years, even though there is no court order requiring this.  The checks are substantial—enough to support the child.  In this case, do I need her consent before my new wife can adopt my son?
 
A:            Probably not.  Even though she has fulfilled her duty to financially support the child, she has not fulfilled her duty to substantially emotionally care for the child.  If she fails to do so for a period of up to one year before the petition for adoption is filed, you probably do not need her consent.
 
Q:           My ex-wife, the mother of my child, is a great mother.  She loves and cares for our child.   I am the custodial parent, but she regularly visits with him.  She is involved with his life and has a relationship with him, but she has not paid a dime in child support for more than three years, even though she has the ability to pay.  My new wife wants to adopt my child.  Do we need my ex-wife’s consent before my new wife can adopt my child? 
 
A:            All the nuances and particularities of the case matter.  Taking all these facts at face value, it is likely that you will need your ex-wife’s consent before your new wife can adopt your child.  If your ex-wife has failed to emotionally and financially support your child for a period of one year before the adoption petition is filed, then you may not need her consent to go forward with the adoption.  However, if she has a “justifiable excuse” for not paying child support, then the court may waive her duty to financially support the child.  Or, the court may determine you do not need her consent to go forward with the adoption.  However, the court also may decide not finalize the adoption because it may not be in the child’s “best interest” to jeopardize your ex-wife’s emotional relationship with your child by finalizing the adoption.

 

Q:           My loser ex-husband lost his job, and has not been able to pay child support in more than a year.  Still, he has kept up with the visitations per our divorce decree.  Do I need his consent before my new husband can adopt my child?
 
A:            The answer depends on many factors.  If the legal father fails to financially support his child for a period of more than one year, the court may determine that his consent is not needed in order to go forward with the adoption.  However, if he has a “justifiable excuse” for why he did not pay, it will be up to the judge to decide whether or not to accept his “justifiable excuse.”  Justifiable excuses may include losing a job, going to jail, or simply not having the ability to pay.  The court’s decision about whether an excuse is justifiable depends on the jurisdiction and your judge.  If the courts find that the legal father does not have a justifiable excuse for not paying child support, his consent is not needed to go forward with the adoption. However, the courts can still determine that it is not in the child’s best interest to proceed if the adoption interferes with your ex-husband’s relationship with the child.

 

Q:           My loser ex-wife has not paid child support in more than a year and a half.  Just recently, she got wind that I wanted my new wife to adopt our child, so she started mailing me a few checks.  I do not need her money, so I ripped up the checks and sent the pieces back to her.  Since she has not supported our son financially in more one year, do I need her consent before my new wife can adopt our child? 
 
A:            Under these circumstances, it is likely that you would need her consent.  If you interfere in any way with your ex-wife’s attempt to emotionally or financially support her child, she may have a “justifiable excuse” as to why she did not fulfill her duty to support. By ripping up the checks, you may have given her a “justifiable excuse.”

 

Q:           The father of my child has kept up with child support payments, but he has not visited our child in more than one year.  I believe he has been in jail.  Do I need his consent for my new husband to adopt our child?
 
A:            Again, this case depends on many circumstances, including the father’s relationship with the child.  According to the facts as stated, you probably would need the father’s consent to go forward with the adoption.  Some Ohio judges have determined that jail is a “justifiable excuse” as to why a parent has not fulfilled his duty to emotionally support a child.  Again, this can be a complicated scenario and you should speak to an attorney to see if there is anything further you can do.

 

Q:           The legal father of my one-year-old child is 16 years old.  He has a relationship with our child, but has never supported the child financially at all. I recently got married.  Do I need the legal father’s consent for my new husband to adopt his child?
 
A:            Based on the facts you’ve shared, you probably would need the father’s consent to go forward with this step-parent adoption.  Some judges would determine that a 16-year-old minor who is in school, living with his parents, does not have the capacity to financially support the child. A judge may consider that the father has a “justifiable excuse” for not financially supporting the child, and if the father has an emotional relationship with the child, the judge may determine it is not in the child’s “best interest” to go forward with this adoption.

 

Q:           My ex, the father of the child, pays child support that is automatically taken out of his paycheck.  He has connected with the child within the last year, but with only one email and a birthday card.  Do we need his consent for my new husband to adopt the child?
 
A:            You probably do not need his consent.  Though the father has fulfilled his duty to financially support the child, he has not made “substantial” attempts to emotionally support the child.   The court may consider one email and one birthday card to be “de minimus” (minimal) support and may determine that you do not need the father’s consent to go forward with the adoption.

 

Q:           My ex, the mother of my child, has stayed in contact with our son and visits him regularly.  However, she is an emotional wreck and I know she is doing heroin.  She hangs around with shady people. The only financial contributions she has made were a birthday present and, occasionally, some diapers. I see no justifiable excuse for her not financially supporting our child, since she does have money.   Do we need her consent for my new wife to go forward with this adoption?
 
A:            You probably do not need her consent to go forward with the adoption, but this sort of case can be tricky.  If your child’s mother does not have a “justifiable excuse” for failing to substantially support the child, then the court may determine you do not need her consent to go forward with the adoption.  Assuming she has an emotional relationship with the child, the court may determine that her consent is not needed for the adoption, but that it is not in the child’s “best interest” to terminate the parent/child relationship.  However, in this case, it may be in the child’s “best interest” to go forward with the adoption if his biological mother is addicted to heroin.

 

Q:           I think my ex-boyfriend fathered my child, who is now three years old.  We were never married and he never filed anything in court to show that he is the legal father.  Also, I never put his name on the birth certificate.  For the first two years of my child’s life, he came around and had a relationship with the child.  For the past year, he has not come around at all.  Do I need his consent for my new husband to adopt my child?

A:            Probably not.  If the child’s father did not do anything to “grasp the opportunity” for the court to determine him to be the legal father, then he is not, in fact, considered to be the legal father. Therefore, you do not need his consent to go forward with the adoption.

 
 
Q:           I have a four-year-old child.  I have never been married, but I am engaged, and I want my fiancé to adopt my child.  The history of my child’s father is confusing.  Sometimes he comes around and tries to see our child, and sometimes he give me some money, but other times I go for long periods without getting any help from him.  There is no court order of child support. He gave me some money last month, but the last time he saw the child was more than a year ago.  Can my fiancé adopt my child?
 
A:            No.  A fiancé cannot adopt a child.  You must be legally married for a step-parent to adopt a child.

 

Q:           My ex-husband and I had a son during our marriage. I caught him cheating on me, and after our divorce, I moved in with my parents because I couldn’t make ends meet.  My father said I could live with them as long as my ex-husband didn’t come around, so I wouldn’t let my ex-husband see our son.  It has been more than a year since my son has seen his father.  I recently re-married.  Do I need my ex-husband’s consent for my new husband to adopt?
 
A:            According to the facts you’ve provided, the answer would probably be yes.
It would appear that your ex-husband had a “justifiable excuse” for not fulfilling his duty to emotionally support the child because you would not let him see his child. Also, you did not mention whether or not the child’s father provided financial support.

 

Q:           My little girl’s father has never been in the picture.  I do not even know who he is.  My current husband wants to adopt my child, but he was convicted of selling drugs to a minor more than five years ago.  Can he adopt my child?
 
A:            Probably not.  A step-parent must be investigated for fitness, and certain crimes in the Ohio statute prevent a step-parent from adopting.  Selling drugs to a minor is one of those crimes.