Tuesday, February 27, 2018

Custody Issues: Adoption, Relinquishment, and Termination in Nebraska

I recently had a client ask about the Nebraska law related to the "abandonment" of minor children. My client's ex-wife had moved out of state some time ago, and had little to no contact with their daughter for a number of years. Meanwhile, the client had remarried and his new wife had willingly accepted client's daughter from the prior marriage into their home. The client's new wife now wishes to adopt the child as her own. Because this scenario presents several common and compelling family law issues, I thought I would provide a quick summary of the relevant Nebraska law.

First, Nebraska law requires the written consent of both biological parents, and of any child aged fourteen or older, prior to an adoption.  Written consent is not necessary, however, if a biological parent has relinquished his or her parental rights in a "written instrument."  Generally, relinquishment is the cheapest and least painful means of perfecting the adoption of child by a step-mother or step-father. The adopting parents simply have their attorney prepare an affidavit of relinquishment, and if the biological parent agrees to give up her parental interest, she simply signs the affidavit before a notary public.  The adopting parents then present the affidavit into evidence during the adoption proceedings. The process is relatively quick and non-confrontational.

A biological parent's written consent to the adoption is also unnecessary if the juvenile court determines that the biological parent had abandoned the child for six months directly preceding the filing of the petition for adoption.  Be aware, however, that legal abandonment may require more than simply not communicating with the child for six months time. Instead, the petitioner's counsel must be prepared to show that the biological parent had failed to take any interest in the well-being of the child for the statutory period. One tricky issue when claiming abandonment as justification for having no consent in adoption proceedings is that the adopting parents have likely already requested a relinquishment from the biological parent before filing the adoption petition. Though they are two distinct legal issues, a biological parent's refusal to relinquish parental rights may prove strong circumstantial evidence against a finding of parental abandonment.  Accordingly, the adopting parents must carefully consider whether seeking a relinquishment is likely to be successful before rushing in and limiting other remedies.

A final option for my client to consider in this case is to petition the court for a termination of the parental rights of his ex-wife. There are several statutory grounds for the termination of parental rights, including: abandonment for six months or more, excessive drug or alcohol abuse that negatively affects the health or well-being of the child, exposing the child to aggravating circumstances such as physical or sexual abuse, or failure to pay child support when the obligated parent had the means to pay such child support.  Termination proceedings are often highly contested. The petitioner must serve notice on the biological parent, which can be difficult when the parent is out-of-state, or whereabouts are unknown.  Further, legal expenses will be higher because the termination proceedings can only effectuate the termination of the biological parent's parental rights. Step-mom will still be forced to undergo a separate adoption proceeding.  Accordingly, I only recommend initiating termination proceedings when the biological parent will not agree to a relinquishment AND the child has not been abandoned for six months or more.

Child custody and adoption issues are highly sensitive and often overwhelming. If you have questions about any of this information, or wish to talk about your family's particular circumstances, please don't hesitate to call.

Custody Issues: Adoption, Relinquishment, and Termination in Nebraska

I recently had a client ask about the Nebraska law related to the "abandonment" of minor children. My client's ex-wife had m...