The Question:
I am the legal parent of a child who has been living with another adult, with my permission, for an extended period of time. That person has now filed a court case seeking third-party rights, claiming they stand “in loco parentis” to my child.
The case has become contentious and expensive. Temporary orders have been entered, and I am reaching the point where I am not sure I want to continue fighting. If I believe the child should remain with this person, can I simply agree to let them adopt the child instead? If I agree to an adoption, does that end the pending custody case? What happens to child support and attorneys’ fees? Is agreeing not to fight the custody case basically the same thing as signing over my parental rights?
RJ Says:
No, and this is an important distinction that can have lifelong consequences.
There are at least three separate legal concepts involved in your situation:
- Agreeing not to contest a custody case
- Consenting to an adoption
- Terminating the legal parent-child relationship
Those concepts may be related, but they are not interchangeable.
Deciding Not to Fight a Custody Case Does Not Automatically Terminate Your Parental Rights
Arizona law allows certain third parties who stand in loco parentis to ask the Superior Court for rights involving a child under specific circumstances.
Very generally, in loco parentis refers to someone who is not the child’s legal parent but who has developed a meaningful parental relationship with the child over a substantial period of time.
A parent may ultimately decide that continuing to litigate against that person is no longer in the child’s or the parent’s best interests. That decision does not, by itself, mean the parent has ceased being the child’s legal parent.
Depending upon the case, it may be possible to resolve the pending litigation by agreement or by advising the Court that certain requested relief will no longer be contested. But that is very different from an adoption.
Adoption Is a Much Bigger Step
People sometimes use phrases such as, “I’ll just sign over my rights.”
Legally, it generally isn’t that simple.
An adoption is a separate legal proceeding. The prospective adoptive parent must actually want to adopt the child. The legal requirements for an adoption must be satisfied, the necessary consents or other legal authority must exist, and ultimately the adoption must be approved by the Court.
In other words, a parent generally cannot unilaterally decide, “I don’t want to fight this custody case anymore, so I’m making the other person the legal parent.”
The other person has to be willing and legally able to pursue the adoption.
What If the Other Person Wants Custody but Doesn’t Want to Adopt?
This is where the distinction becomes especially important.
Someone may be willing to seek placement, legal decision-making authority, or other third-party rights concerning a child but not be willing to become the child’s legal parent. Adoption creates an entirely different legal relationship.
Before a parent stops defending an in loco parentis case because the parent assumes an adoption will occur, the attorney needs to determine whether an adoption is actually something the other person intends and is legally able to pursue.
What About Child Support?
A parent should not assume that merely signing a consent to adoption immediately eliminates every existing or potential financial obligation.
Questions may remain concerning existing child support obligations, possible arrearages, expenses incurred before the adoption, attorneys’ fees requested in the pending litigation, and the effective dates of various court orders.
Some issues may potentially be resolved by agreement. Others may require specific court orders. Certain obligations may not be something the parties can simply eliminate through a private agreement.
That is why the financial issues should be addressed before documents with permanent consequences are signed, not afterward.
The Most Important Question May Not Be Legal
There is also a fundamental question I would want a client to consider:
Do you genuinely want someone else to become your child’s legal parent, or are you simply exhausted by the litigation?
Those are two very different things.
Family court litigation can be emotionally draining, financially expensive, and extraordinarily stressful. A person may reach a point where he or she simply wants the case to end. But ending a lawsuit and ending a legal parent-child relationship are not the same decision.
An adoption is intended to create a permanent legal parent-child relationship. A decision of that magnitude should not be made simply because someone feels overwhelmed by a pending custody battle.
Before Making This Decision, Have an Attorney Review the Entire Court File
Before advising someone in this situation, I would want to review everything that has already been filed.
That would include the Petition for In Loco Parentis or other third-party rights, any request for emergency temporary orders, the Court’s existing orders, requests concerning child support, requests for attorneys’ fees, responses that have already been filed, and any proposed agreements or adoption documents.
The wording of those documents matters.
Only after reviewing the complete procedural history can an experienced family law attorney intelligently advise a client about whether it makes sense to:
- Continue defending the case
- Resolve the existing case by agreement
- Consent to an adoption if one is actually being pursued
- Consider some other resolution
RJ’s Takeaway
If you no longer want to contest a third-party custody case, that does not necessarily mean you need to terminate your parental rights. Likewise, consenting to an adoption is not simply another way of settling a custody dispute.
These decisions can affect your relationship with a child permanently. Before signing anything or telling the Court that you no longer oppose the other person’s requests, talk to an experienced Arizona family law attorney who can review the pending case and explain exactly what each option would mean.
Sometimes the most important question isn’t simply, “How do I end this case?”
It is, “What legal relationship do I want to have with this child after the case is over?”
Those are very different questions, and the answer can affect both you and the child for the rest of your lives.
Call (602) 256-7575 to schedule a free consultation with an experienced Phoenix family law attorney.