Question: Adoption and Custody Rights
My Wife and I adopted a child from Mexico. Mexico only allowed one parent to adopt and my Wife is the one who adopted. Now we are looking at getting a divorce. Do I have any parental rights to my son?
Answer: Great question. Here is how we have seen this situation play out.
Jim and Patty have been married for 10 years. They have experienced some turmoil in their relationship in the last year or so. Jim left the marital residence and is living separate from Patty for now. He moved into his own apartment down the street to give them some space. Jim hoped they could reconcile, but have not had any success. He would like to move forward with a divorce at this point.
Jim and Patty have one son together. His name is Fred. Fred is 9 years old. Patty adopted Fred from China about a year after Jim and Patty married. Unfortunately, at the time of the adoption, the law did not allow both Jim and Patty to adopt Fred. The parties decided it would be ok if Patty adopted him on her own. Jim and Patty were going to complete the adoption process for Jim after returning to the United States, but their lives were busy and they never got around to it.
Fred does not know he is adopted. He calls Patty mom and Jim dad. He does not know of any other parent in his life. Jim and Patty have wanted to keep this a secret from him, as they are worried it would cause him severe emotional problems if he knew the truth.
Jim told Patty he will be filing for a divorce. Patty was extremely upset and told Jim that he does not have any legal right to Fred. Because of this, she told Jim that he would not have any relationship with Fred moving forward. Shocked by this, Jim cannot understand how he could not see his own son again. What can Jim do? Does he have a legal right to see Fred?
Unfortunately for Jim, he made the mistake in never adopting Fred. This means that Jim does not have any legal right to Fred at this point in time. He is not an adopted parent or legal parent. Patty has every right to keep Fred from him. But, there are exceptions to this that prevent Jim from ever seeing Fred again.
Jim has a special type of standing in this case. It is called in loco parentis. This means that Jim has stood in place of a parent for Fred. Here, it is very clear that Jim stood in the place of a parent. Jim was essentially Fred’s father. Fred even believes that Jim is his biological father. Because Jim has this type of standing, he still has the right to have visitation with Fred.
There is a caveat to this situation, however. Even though Jim can have visitation with Fred, he cannot have any legal decision making authority over Fred. In order to do so, Jim would need to show the court that it would be significantly detrimental for Fred to remain with Patty. For example, if Patty was a drug user or an alcoholic or had committed a crime or an act of domestic violence, Jim would be able to make a claim for legal decision-making. Unfortunately, Patty has been a fantastic mother and there are no concerns for Fred’s safety when with her.
This means that Jim will be limited to only visitation with Fred. The other thing to keep in mind is that it is called “visitation,” not “parenting time.” This means that Jim is not allowed to dictate the upbringing of Fred. He cannot make decisions for him. Patty will have full say on those decisions. The other difficulty with being a third party, like Jim, is that he will never be able to have more time than equal time with Fred. Even equal time will be VERY difficult to obtain. The reason the court will limit his time is because if he is given more time, then he will have that opportunity to raise and make decisions for Fred when he is with him.
Jim will need to make sure that along with his Petition for Dissolution he also files a Petition for 3rd Party Visitation. If he does not, then he will not be awarded any time with his son. If the court believes it is in Fred’s best interest to spend time with Jim, the court will likely give Jim at least some visitation.
