When a married person adopts a child, they must adopt the child with their spouse. The child becomes the legal child of both spouses. Just like divorce occurs in the general population, couples who adopt may also find themselves in divorce proceedings. When that happens, you might wonder what happens to an adopted child in Utah.
Here’s what you should know about what happens when a couple with an adopted child divorces in Utah:
The rules are generally the same
Adopted children have the same legal rights in a divorce that all children have in a divorce. They have the right to a custody arrangement that represents their best interests. In most cases, a custody order that reflects their best interests includes some kind of continuing contact with both parents. Adopted children have a right to have custody orders enforced so that they can maintain a close relationship with both parents.
Adopted children also have the right to financial support from both of their parents. Even though adopted children have the same rights that all children have in a divorce proceeding, there are still some special things to keep in mind. An adopted child may have special needs. There are also unique financial considerations if an adopted child receives a state adoption subsidy. It’s important to identify and address the special circumstances that may apply when a child has been adopted.
Both parents have the legal right to seek custody
Both parents may ask the court to award them custody of an adopted child. Even if one parent has a biological relationship to the child, neither parent has a preference based on a biological relationship. Each parent is a legal parent to the child, and the court determines child custody based on the best interests of the child given all of the circumstances present in the case.
A custody order for an adopted child can be flexible to meet the specific needs of the child. If the child has special needs, the court may take those needs into account. The custody order may be very specific if it’s necessary to protect the best interests of the child and meet their physical, mental and emotional wellbeing.
Parents who are in divorce proceedings that involve an adopted child must inform the court of special circumstances surrounding the child so that the court has the information it needs to make a decision that reflects the child’s best interests.
The child has a right to child support
Just as any child has a right to the financial support of their parents after a divorce, adopted children have the same right to financial support from their parents. If you’re divorced, child support determinations are the same as they are in all cases. The courts base child support awards on the income of the parents and the needs of the children. The courts can consider special needs of the children and extraordinary expenses when they make a determination of child support.
Child support and adoption assistance payments
One unique issue that may arise in a divorce proceeding that involves an adopted child is what happens when the child receives an adoption subsidy payment. The payment may be several hundred dollars each month. Even when parents’ divorce, the adopted child continues to receive this payment until they reach the age of majority. The question becomes how the payment factors into the court’s determination of child support. The parent who receives the payment on behalf of the child most certainly argues that the payment doesn’t relieve a parent of their obligation to financially support their child. They say that they should be able to receive the adoption subsidy on behalf of the child and still collect full child support for the child. On the other hand, the parent who pays support usually argues that the subsidy is meant to meet the needs of the child and that any additional child support payments amount to a windfall for the receiving parent. They generally ask the court to offset the subsidy against any child support payments that are otherwise due to the recipient parent.
Utah courts agree that an adoption subsidy is the property of the child. They typically rule that the paying parent must pay support even in cases where the child receives a subsidy. However, the court is still allowed to consider the entire set of circumstances present in the case and determine what’s necessary to meet the needs of the children. For example, in cases where each parent has parenting time, the court might apportion the amount of the adoption subsidy between the parents based on their respective shares of parenting time.
Can we make an agreement about custody when we adopt the child?
You may be wondering about adopted children and divorce before you complete the adoption process or before you begin a divorce. With custody and child support determinations so critical to children and their parents in any divorce proceeding, you may be wondering if you can work with your spouse to create an agreement that determines child custody in the event that you get divorced. You might wonder if you can create a postnuptial child custody order that goes into effect in the event that you get divorced in the future.
In Utah, child custody agreements that parents enter into before divorce proceedings are unenforceable. The courts don’t enforce prenuptial or postnuptial custody agreements created between parents. They consider only the best interests of the children at the time of the divorce. The courts say that it’s contrary to public policy to enforce agreements between parents that don’t take all of the circumstances into account that exist at the time of the divorce. If you’re considering adopting a child, it’s important to understand that the courts do not allow you to create a child custody agreement that applies in the event that you get divorced. It’s up to parents to prove that the custody arrangement they’re seeking is in the best interests of the child at the time of the divorce.
Protecting the interests of adopted children in divorce proceedings
If you’re considering adoption, it’s important to understand how the law addresses special considerations for adopted children in the event that you get divorced. Likewise, if you’re in the divorce process, it’s important to determine if any special circumstances apply. Adopted children may have special considerations when it comes to determining child custody. In addition, the adoption subsidy may also impact a child support determination even though both parents have an obligation to financially support their adopted children.
Paying Child Support for a Non-biological Child
When there are legal disputes over child custody and/or divorce, courts will often award child support payments. The non-custodial parent will generally be ordered to make payments to the custodial parent in order to help with expenses related to raising their child. While this usually only applies to the child’s biological parents, sometimes a person can be ordered to pay child support for a non-biological child.
Biological paternity simply refers to someone who is the biological parent of a child. On the other hand, legal paternity refers to someone who is legally recognized as the child’s parent and therefore has parental rights like a biological parent would have. This includes adoptive parents and legal guardians. It is important to understand the concept of legal paternity and how it can impact child support proceedings.
What Are Some Important Things About Legal Paternity?
Besides situations of voluntary legal paternity, like adoptive parents and legal guardians, there are some situations when a person who is not a biological parent is presumed to have legal paternity. For example, you may be presumed to be a child’s legal father when:
• You are married to the child’s mother at the time the baby was conceived or born;
• You sign the child’s birth certificate as their father, even if you know you are not the biological father; and
• You fill out a legal acknowledgement of paternity form.
You should also keep in mind that there are situations where a biological parent does not have parental rights because these rights were legally terminated. One situation could be where the parent is not involved and a stepparent decides to adopt the child. The court would terminate the biological parent’s rights and grant those parental rights to the child’s stepparent instead. Regardless, once you establish legal paternity, in the eyes of the law you will carry all of the rights and responsibilities associated with being a parent. Additionally, after a person acknowledges paternity many states will provide a two year limitation to contest or dispute paternity. However, some provide a shorter amount of time so knowing your state’s laws and procedures if you are faced with this issue is crucial.
How Does Child Support Factor Into the Legal Parent/Non-Biological Child Relationship?
In family court proceedings, the judge will always base their decisions on what is in the best interests of the child. That is why these matters are fact driven and will vary. Most states will recognize the importance of a parent-child relationship even when biological paternity is not involved. Because of this, a legal parent who is not biologically related to the child but has played a big role in the child’s life may be responsible for child support if divorce or separation happens in the future. Other terms for this are “equitable paternity” and “parentage by estoppel”. This also broadens the scenarios of when someone can be considered a legal/equitable parent. If you and the other parent had a close familial relationship where you parented the child and lived in the home, you may be considered an equitable parent. Additionally, if you held the child out as being your own then you may be considered an equitable parent. Again, this will vary between the states and depend on the circumstances of your relationship with the child. However, a court could deem you to be a legal parent in these circumstances or any of the others discussed above, which could make you responsible for future child support payments.
Can The Courts Enforce Child Support Payments for Non-Biological Parents?
As noted above, a family court can order a non-biological parent to pay child support in certain situations.
The person will need to be a legal or equitable parent. Look to your state’s child support guidelines for more information about when this could apply. Some factors that could weigh into this decision include the following:
• You financially supported the child for a significant amount of time;
• You emotionally supported the child for a significant amount of time;
• You lived with the child and other parent; and
• You helped make important parenting decisions, like where the child would go to school or what medical treatment the child would receive.
All of this could support a case for equitable paternity if you are not a biological or legal parent of the child. This can make it difficult to avoid child support payments mandated by court order. However, keep in mind that this will also support a case for you to have custody rights over the child, which means you could fight for shared custody or visitation rights. You can also attempt to establish someone else’s biological paternity as a defense to making these payments. However, say you acted as a father figure to a child by exhibiting all or some of the traits discussed above. Even if you track down the biological father, if they were never involved in the child’s life then the court may still order you to make the child support payments if you separate from the mother.
Should I Hire a Lawyer For My Child Support Issue?
Child support and custody issues can be complicated and argumentative. A child support lawyer in your area can help if you are dealing with these issues. An experienced lawyer will be able to thoroughly evaluate your situation and explain why you could face child support payments for a non-biological child. A lawyer can also help you fight for shared custody or visitation rights if that is something that you want.
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