One of the most rewarding parts of being an attorney involved in family issues is handling an adoption. That doesn’t mean that adoptions are always easy for the families involved. The fact is that an adoption is usually the happy ending to a complicated story. The attorneys at Owens, Mixon, Heller & Smith, P.A. understand this on a personal level, having played a part in adoptions inside and outside of our legal practice.
One of the most important issues in an adoption is how to address the rights of the biological parent that is no longer in the picture. In some instances, this is simple: if a natural parent consents in writing or has abandoned the child and played no part in their support or upbringing, a step parent who is married to the other natural parent has a straightforward path to adopting. Whether it seems fair or not, the complications arise when the biological parent, who has had some minimal contact with the child, refuses to consent to the adoption.
Arkansas Code Annotated § 9-9-207 states that the consent of a natural parent to an adoption is not necessary when that parent has deserted or abandoned the child. But when is a child “deserted” or “abandoned?” Arkansas courts have held that a natural parent must “fail significantly” to communicate with the child or provide for the care and support of the child for a period of one (1) year. The failure must be voluntary, willful, arbitrary, and without adequate excuse. The year does not have to immediately precede the adoption. If a natural parent failed to see, support, or communicate with the child for a period of 1 year, and then made contact, the act of contacting the child does not erase the previous failure to see, support, or communicate for a one-year period.
This creates a sort of legal hoop that the step parent has to jump through. But upon proof that a natural parent failed significantly to see, support, or communicate with the child, the court may grant an adoption without the consent of that natural parent.
But what about a situation where an absentee parent has maintained some minimal contact and support for the child, by sending some pittance of support on birthdays or Christmas or by calling to talk to the child for a few minutes ever few months? Strictly speaking, that parent has not failed to see, support, or communicate with the child for a period of one (1) year. Does that mean an adoption is impossible?
No. Ultimately, a court will consider the best interest of the child. If a step parent can prove, by clear and convincing evidence, that an adoption is in the best interest of the child, the court can grant an adoption over the objection of a natural parent. But this is a big ask and the proof will need to be substantial.
Arkansas courts have ruled that it was in the best interest of a child to be adopted when the child’s natural parent, who lived 5 hours away, only communicated with the child by telephone on a biweekly or monthly basis and made no effort to see or otherwise support the child. Facts like this, in additional to countless other situations, if proven, can be enough for a court to grant an adoption over the objections of an absentee parent.
If you have any questions about adoption, please call us at 1-870-336-6505 and ask to speak with Lance or Aaron about whether adoption is the right step for you and your family.