Divorce Lawyer: A Scenario for a Biological Father to Lose Custody to a Step Father

If you are a biological father and want to retain some form of custody of your child, then you should make every effort to establish custody sooner rather than later.  Simply abandoning the child and subsequently wanting custody of your child after years or even six months will deprive you of your right to consent to your child’s adoption.  As painful as it may be, cooperating with your ex-spouse in relation to custody matters is very necessary in order for you to maintain the required communications with your child to prevent an adoption.  Here are some observations from the perspective of a divorce lawyer as applied to Louisiana law.

In Louisiana, a person seeking adoption must obtain a termination of parental rights from the biological parents.  It is often times easy to obtain such termination or waiver of parental rights when the biological parents want to put their child up for adoption.  However, it can be difficult for a divorce lawyer or family attorney to obtain such termination when a biological parent does not want to give up their child to adoption.

In a case from Louisiana’s Third Circuit court of appeals, the biological father objected to the stepfather’s petition to adopt his child. The stepfather asserted that the biological father has had no contact with his child since the termination of his marriage to the child’s mother nearly 9 years before aforesaid petition was filed.  (It is common for a divorce lawyer to address child custody in these types of petitions.)

The biological father offered reasons for not contacting his child.  He asserted his medical problems, financial problems, and fear that his ex-wife (the child’s biological mother) would seek to have him held in contempt for violating a protective order she had obtained against him. He also alleged he attempted to give his child $2,400.00 in child support through a third party.  To the contrary, the mother alleges she received absolutely nothing from the biological father.  A divorce lawyer would probably had been able to advise him on how to get the money to her.

The trial court determined that the biological father’s consent to the adoption of his child to the stepfather was not necessary because he had not been much in the child’s life.  This ruling is probably not a surprise to a divorce lawyer, as court’s often weigh contact and support heavily.  Despite this, the biological father filed an appeal asserting that the trial court erred.

When reviewing adoption cases, the appellate standard of review is to determine whether the trial court committed manifest error or was clearly wrong.   The appellate court noted that the required consent from both biological parents can be dispensed of upon a showing by clear and convincing evidence.  To a divorce lawyer, this can be a very high standard presumption to overcome.  The court found that failure to communicate or attempting to communicate with the child without just cause for six months can be grounds for dispensing that biological parent’s consent.

The appellate court addressed the biological father’s reasons for not communicating with his child.  The appellate court also noted that the biological father was well enough to date and subsequently remarry. Yet, in that same time frame, he claimed he had medical problems which prohibited him from contacting or attempting to contact his child.  The appellate court did not find this very credible.   As such, the appellate court affirmed the trial court’s ruling granting the stepfather the adoption of the biological father’s child. 

The above is purely informational.  It is not legal advice.  Will Beaumont, Esq., who works in New Orleans, Louisiana, provides this article as a way providing information.  It is under no circumstances to be construed as legal advice.