What Happens to an Adopted Child During (and After) a Divorce?
The Same Thing as a Biological Child.
Did you and your spouse adopt a child? Did you adopt your stepchild and make him your own? Are you worried that adopted children may be treated differently in a divorce? Parents of adopted children need not fear! Read on for reassurance about how your relationship with an adopted child continues after a divorce.
Modern families come together in many ways—some by birth, some by adoption, and some by “informal” adoption (in spirit, but not by legal means). No matter how a family comes to be, Wisconsin family courts endeavor to respect the unique bonds that form a parent-child relationship—even when that family separates in a divorce.
Adopted Child’s Rights
Adopted Children are treated like Biological Children.
In a divorce process, adopted children are treated no differently than biological children. The circumstances of their adoption, the age at which they were adopted, or the location they were adopted from are irrelevant in family court. Adopted children are your children—plain and simple.
As such, the court will be obligated to make determinations regarding their best interests and will establish orders regarding their custody, placement, and the amount of child support that should be paid for them. All of this will be done without any regard for their adopted status.
Adopted children cannot be returned to their birth-parents or to their birth countries because their parents get divorced. Divorce does not threaten or in any way “undo” a legal adoption.
But What About Children Adopted by Same-Sex Partners?
A child adopted by same-sex partners is treated no differently than a child adopted by partners of the opposite sex. This is true even when one party is the biological parent of the child, and the other party is the child’s adoptive parent.
The courts do not give any favoritism or advantage to the biological parent over the adoptive parent. They are viewed as equals to the child. Furthermore, the courts are statutorily prohibited from preferring one parent over the other on the basis of sex. (Sec. 767.41(5)(am) Wis. Stats.).
Stepparents & Stepchildren After Divorce
Will I Still Get to See My Stepchild if I Divorce His Parent?
If you adopted your stepchild, the child is no longer considered your stepchild. Rather, you are now their legal parent no differently than if they were your biological child. In this case, you will be able to establish custody, placement, and child support for the child if you divorce their biological parent. You will have all the same parental rights as the biological parent in a divorce proceeding.
If you did not adopt your stepchild but have maintained or have attempted to maintain a parent-child relationship, you can petition for visitation with your stepchild and the court will grant you visitation rights if it finds doing so is in the child’s best interests. However, this action will likely be separate from your divorce from the child’s natural parent.
Can I Un-adopt My Stepchild if I Divorce His Parent?
If you adopted your stepchild, but are now divorcing his other parent, the divorce will not “undo” the adoption.
Furthermore, even if you want to undo the adoption and no longer want to be the child’s parent if you are not married to his other parent, you will not be able to undo the adoption.
Once a child is adopted, they are adopted for life. They become your child for all time and for all purposes—no different than if they were your biological child. This means that if you adopted your stepchild, you will be legally obligated to care for them and support them until they are legally emancipated (at age 18 and out of high school or age 19 if they are still in high school—whichever comes last).
Can I Adopt My Stepchild Without the Biological Parents’ Consent?
If you are married and would like to adopt your spouse’s child, you can only do so if both biological parents consent. Assuming your spouse consents, you must also have the consent of the other parent. If they will not agree, you cannot adopt the child even though you and your stepchild and your spouse want the adoption.
However, if the other parent does agree, you still have to go through formal adoption proceedings—which must first be preceded by the biological parent’s termination of parental rights.
If you have questions about how an adoption might impact your family or how divorce might impact your child’s adoption, do not hesitate to contact one of our attorneys for a free consultation to discuss your and your child’s rights and options.