Orphan Adoptions

Deceased Parent

Losing your spouse or partner is hard; losing that person when you have a child together is even harder.  Eventually, you will move on and you may even remarry at some point.

If you remarry, and your spouse wants to adopt, what do you do? Can they adopt your child?  What happens to the survivor’s benefits from Social Security?

Presumption of Paternity

During this adoption process, you will hear about the father being adjudicated and the “presumption of paternity.”

The presumption of paternity can happen in different ways; such as the voluntary signing of the birth certificate, the mother and father being married prior to the child’s birth, a prior Court Order, or an Acknowledgement of Paternity being signed and filed.

—See Tex. Fam. Code §  160.204

If something happened to your partner before the child was born and the father could not be properly adjudicated, you may to need start looking for copies of the death certificate, and possible DNA tests for both social security and the Courts.

Survivors Benefits, Do I Lose Them?

According to the Social Security Administration’s website, “the adoption of a child already entitled to survivor's benefits does not terminate the child's benefits.”

Getting Your Child’s Permission

During the adoption process your child may have to give consent to certain actions.  For example, if your child is age 10 or older, then he/she must consent to their name being changed.  If your child is age 12 or older, then he/she must consent to the adoption and must appear at the final hearing.  However, the consent to the adoption and appearance at the final hearing may be waived by the Court if that is in the child’s best interest.

—See Tex. Fam. Code §§ 45.002, 162.010, & 162.014

How Do We Do This Adoption Thing?

You will want find a good attorney who handles adoptions regularly and whom you feel comfortable speaking with.  Then the process of the adoption can begin just like any other step-parent adoption.

A petition for adoption will need to be filed, the adopting spouse will need to have a criminal back ground check, and a post-placement social-study will need to be done prior to the final order from the Court.

—See Tex. Fam. Code §§ 162.0085 & 162.003

The biggest difference between a deceased-parent adoption is probably also the most obvious.  Because the other parent is deceased, there is no need to terminate their parental rights.  This will reduce some of the costs associated with pursuing an adoption.

For more information about the adoption process, see our How to Adopt a Child blog.

--Authored by Emily D. Walterscheid, edited by Matthew L. Harris, Esq.

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

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