Tag Archives: dependency

Are you raising a relative’s child?

We all know someone who is raising a grandchild or niece or nephew because the child’s parents are unable or unwilling to parent the child. Though such relatives provide needed stability in the child’s otherwise precarious life, the relative is helpless when the parent suddenly decides to take the child back. Unless the relative has obtained a court order awarding temporary relative custody, there’s nothing s/he can do. The parent, even after years of absence, has the right to custody.Photo credit - Anissa Thompson

A power of attorney signed by a parent is better than nothing at all, but it can be revoked by the parent at any time. Some parents refuse to sign a power of attorney. They use their children as leverage to force relatives to give them money or provide 24-hour on-call babysitting services. While such extortion is reprehensible, relatives feel they have no choice but to comply with the parents’ demands when the child’s well-being is at risk.

Depending upon the circumstances, a concerned relative may be able to obtain temporary or concurrent custody to insure stability for a child. With temporary custody, the parent cannot take the child back without first obtaining the court’s permission. With concurrent custody, both the parent and the relative share custody. Neither can prevent the other from exercising custody of the child.

Any relative considering caring for or raising a grandchild, niece, nephew or sibling, for any amount of time should seek the advice of an attorney well-versed in all of the options. There is a window of opportunity to act, and it’s best to know what the options are before the window closes. Contact the office of Melissa A. Tartaglia, Esq., at (727) 835-7832 to arrange a consultation.

If you believe a child is at risk of abuse, abandonment or neglect, call 1-800-96-ABUSE to make an anonymous report.

Photo credit – Anissa Thompson

Adopting an Out-of-State Child Can Increase Adoption Expenses.

Adopting a child outside of the state in which you live, assuming the child is not a relative or stepchild, will likely be more expensive than adopting a child residing within your state. The main reason for the extra expense is the Interstate Compact on the Placement of Children (“ICPC”), a uniform law which has been adopted by all 50 states, the District of Colombia and the U.S. Virgin Islands.

Though the law doesn’t come right out and say it in plain terms, its purpose is to insure that the “receiving” state is aware of children coming into the state who may or may not end up requiring state assistance.

Photo credit - Joplin Hendrix da Silva Cruz

Adoption of a child from another state naturally involves two states: the state in which the child resides (sending state) and the state in which the adoptive parent resides (receiving state). Each state has its own ICPC office and each state regulates ICPC procedure differently. (In Florida, ICPC is regulated and enforced by the Department of Children and Families. See F.S. section 409.401 et seq.) Because two ICPC offices are involved in an out-of-state adoption, confusion and duplication of efforts can often result.

Each ICPC office requires the adoption information be packaged in a particular way, to include completion of forms unique to that state. In addition to distinct ICPC procedures and forms, each state’s laws and procedures covering termination of parental rights and adoption are unique as well. For example, the formalities of signing, and content of, a consent for adoption vary from state to state. Some states will allow the termination of parental rights to be completed in the child’s state and the adoption to be completed in the adoptive parent’s state. Some, such as Florida, require that both proceedings be completed in the child’s state.

So, if you intend to adopt an out-of-state child who is not related to you or is not your stepchild, you will need an adoption agency or an adoption attorney who is familiar with and experienced in out-of-state adoptions. Be prepared to pay extra for the tedium of dealing with two ICPC agencies. If you go with someone inexperienced for the sake of saving money, you may end up with a mess on your hands and having to start over, which will increase your expenses, or worse, result in a failed adoption.

So, how can you know for sure if ICPC will apply in your case? If the child is the subject of a state action due to abuse, abandonment or neglect (in other words, the state has removed the child from his or her parents), ICPC will apply whether or not the child is a relative or a stepchild. Also, if the out-of-state child will be placed with you in your state for adoption purposes, ICPC applies. Other factors may or may not affect ICPC applicability. The best course of action is to contact an adoption professional, such as an agency or attorney, in your own state who is experienced in out-of-state placements and adoptions. The more experience you have on your side, the smoother and less expensive the procedure will be.

Photo credit – Joplin Hendrix da Silva Cruz

In Florida, an unmarried biological father is not a “parent.”

In Florida, a father is an unmarried biological father if he is not married to the mother at the time of the conception or birth of the child; and (a) he has not been adjudicated by a court to be the child’s father before a petition is filed to terminate his parental rights; and (b) he has not signed an affidavit of paternity before a petition is filed to terminate his parental rights. Why is this important? Because in Florida, an unmarried biological father is not considered a “parent,” under Chapter 63 of the Florida Statutes.

Example 1: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes, and a court adjudicates him as the child’s father. A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 2: Father is not married to mother at time of conception or birth of child, but his name is on the child’s birth certificate (which means he signed an affidavit of paternity). A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 3: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes. Before the court enters an order adjudicating him as the father, the adoption entity files a petition to terminate his parental rights. This man does not fit within the definition of “parent.”

A unmarried biological father’s lack of parental status carries several legal ramifications relating to his child. They are as follows:

(a) Adoption. If the birth mother places the child for adoption, his consent to the adoption is not required, unless he jumps through several hoops prior to the time a petition is filed to terminate his parental rights.

If the child is less than 6 months of age when placed for adoption, the unmarried biological father must do the following things before the mother executes a consent for adoption:

i) file a Claim of Paternity with the Florida Office of Vital Statistics (Click here to file a Claim of Paternity);

ii) contribute to the birth mother’s and child’s medical expenses related to pregnancy and birth, if he had knowledge of the pregnancy and if he was not prevented from doing so by the mother of legal custodian of the child; and

iii) if served with a notice of intended adoption plan, executed and filed an affidavit with the court that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay. (Click here for Florida law pertaining to unmarried biological fathers’ responsibilities.)

If the child is 6 months of age or older, the unmarried biological father must: i) have maintained a relationship with the child by visiting with the child at least monthly if not prevented from doing so by the birth mother or the child’s legal custodian; ii) have maintained regular communication with the child, when physically and financially able, and not prevented from doing so by the birth mother or the child’s legal custodian.

If the unmarried biological father fails to do the things shown above, according to the child’s age, his consent will not be required for purposes of adoption.

(b) Temporary Custody. Under Chapter 751 of Florida Statutes, an extended family member (such as an aunt, uncle, grandparent, sibling, even stepparent) can petition for temporary custody of a child under certain circumstances. Because an unmarried biological father is not considered a parent, his relatives are not considered extended family members and cannot petition for temporary custody of his child. In fact, the unmarried biological father himself does not have standing to object to temporary custody under this Chapter, and he is not entitled to notice of such proceedings.

(c) Dependency Actions. Under Chapter 39 of Florida Statutes, the State may file a shelter petition to shelter a child from its parents. The State or any person with knowledge that the child has been abused, abandoned or neglected, may file a petition for dependency to have the child adjudicated dependent. While entitled to notice of a dependency action, an unmarried biological father is considered only a “participant,” not a “party,” in any dependency action relating to his child. This means that he is entitled to notice and may address the court; however, he is not entitled to a court-appointed attorney nor can he cross-examine witnesses, obtain discovery documents, etc. If he files a petition to determine his paternity under Chapter 742 of Florida Statutes and is adjudicated the father of the child, then he becomes a party in the dependency action. (Click here for law pertaining to determining parentage.)