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Adoption By Relatives In Wisconsin Including Stepparent Adoption
Wisconsin statutes allow a parent who has custody of a child to place the child for adoption in the home of a relative of the child. "Relative" means a parent, grandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle or aunt, who is related to the child by either birth or in most situations by marriage (s.48.02(15) (PDF 1mb), Wis. Stats.).
The process of adopting a child who is a relative usually will involve four steps: termination of parental rights, petition to adopt and order for investigation, the agency investigation, and the hearing on the adoption. This summary provides a general overview of the relative adoption process in Wisconsin. Families wishing to complete a relative adoption of a child are advised to request legal assistance from an attorney.
Termination of Parental Rights
Before a relative may adopt a child, it usually is necessary to terminate the parental rights of one or both of the child's birth parents. It is not necessary to terminate the parental rights of a deceased birth parent.
The procedure to terminate parental rights begins with the filing of a petition with a state circuit court. In most situations, the court will schedule a hearing on the matter. If the court agrees that the parent's rights should be terminated, it will issue an order terminating the parent's rights after the hearing. Only a court may terminate parental rights.
After a birth parent's rights are terminated, that person is no longer the child's legal parent. Such a person has no legal authority to see the child or to make decisions that affect the child nor is such a person legally responsible for the child.
The procedure for termination of parental rights varies depending upon the relationship between you and the child you wish to adopt. One set of requirements governs an adoption by a stepparent who lives both with the child and with the birth parent who has custody of the child. In such a situation, it is necessary to terminate only the parental rights of the other birth parent who does not have custody of the child. The law requires termination of the other birth parent's rights, even if the two birth parents were never married to each other or the identity of that other parent is unknown. The only exception to this requirement of termination of parental rights is if the other parent is deceased. If the other parent is deceased, it is not necessary to terminate his or her parental rights. The stepparent must file the petition to terminate parental rights and the adoption petition in the circuit court at the same time.
A second set of requirements governs adoptions by relatives other than stepparents. In such situations, it is necessary to terminate the parental rights of both birth parents. It is not necessary, however, to terminate the rights of a deceased parent. Termination of the rights of both living birth parents is required even if the identity of one parent is unknown or the two birth parents were never married.
When a relative other that a stepparent is adopting the child, the petition to terminate parental rights must be filed by one of the birth parents or by the adopting relative. If the relative files the petition, it must be filed at the same time as the adoption petition. If a birth parent files the petition to terminate rights, that parent must file it before the relative files the adoption petition.
There are two ways a termination of parental rights may occur. A court may terminate parental rights of a person either involuntarily without the person's consent, or voluntarily with consent.
An involuntary termination of parental rights will occur if a person objects to termination of their parental rights, cannot be located or is not willing to participate. If the termination of parental rights is involuntary, legal counsel at the hearing usually must represent the parent whose rights are being terminated. In such involuntary proceedings, the child to be adopted must be represented by either legal counsel or a guardian ad litem.
A voluntary termination of parental rights will occur if the person is cooperative and willing to consent to termination of their parental rights. A parent may voluntarily consent to termination by doing one of the following:
- Appearing personally at the court hearing and giving consent: or
- If it is difficult or impossible to attend the court hearing, the court may accept a written consent given before another judge: or
- Any person who may be the father of a child born out of wedlock may sign a written, notarized statement for the court*; or
- In stepparent adoptions or when the birth parents live outside the United States, a birth parent may submit an affidavit giving consent that is witnessed by two persons.
If the birth parent voluntarily terminating parental rights is less that eighteen (18) years of age or by law could be considered incompetent, a court appointed attorney for that parent must join in the consent.
Following the termination of parental rights, the court will appoint a guardian for the child. The guardian may be the relative who has filed the adoption petition or an agency like a private, licensed child placing agency, the Wisconsin Department of Children and Families or the Division of Milwaukee Child Protective Services.
In accordance with s.48.425,Wis. Stats., medical and genetic information regarding the child and the child's birth parent(s) must be collected prior to the termination of parental rights. (Termination of parental rights is addressed in s.48.40 through s.48.435, Wis. Stats..)
*If this voluntary termination procedure is used, it is necessary to obtain a court order terminating the parental rights of the person who signed the statement and any other person who may be the child's father.
Petition to Adopt and Order for Investigation
Once the petition for adoption has been filed, the court will schedule a hearing within ninety (90) days. The court will order an agency to conduct an investigation to determine whether the child is a proper subject for adoption and whether the petitioner's home is suitable for the child (s.48.835, s.48.88, Wis. Stats.).
A licensed adoption agency or a county department of social or human services is usually ordered to conduct investigations for stepparent adoptions. Investigations for other relative adoptions are completed by an agency that has legal guardianship of the child or as specified in s.48.88(2)(a)(2). You or your attorney may prefer to make arrangements with a licensed adoption agency prior to filing the petition to adopt, so the court can order the investigation to be conducted by the agency of your choice and the agency can arrange its schedule in anticipation of the study. This investigation will involve an interview with the relative(s) asking to adopt. The agency may ask the relatives to complete a questionnaire as part of this screening process. In addition, they may conduct a check of background through public records like police records. Investigations performed for relative adoptions other than stepparent adoptions usually include additional steps such as multiple interviews, letters of reference and psychological evaluations. This report is filed with the court ten (10) days before the hearing.
Hearing on Adoption
The court may hold the hearing on the adoption petition immediately after ordering a termination of parental rights. If the child is age fourteen (14) years of age or older, the child must attend the adoption hearing, unless the court orders otherwise. The court will study the report of the investigation by an adoption agency. If the court determines that necessary consents and recommendations have been filed and that the adoption is in the best interest of the child, the court will order the adoption. The order may include a change in the name of the child to a name requested by the petition (s.48.91, Wis. Stats.).