In Your Best Interest, Issue #23

Our Texas law firm receives a variety of questions about biological parents' rights after adoption. Adoptive parents may wonder, “What happens when birth parents want their child back?” A birth mother who relinquished her parental rights may ask, “Can a birth mother reclaim her adopted child?” Our?child custody lawyers?also get questions from same-sex couples about the rights of the adoptive vs. biological parent in same-sex child custody disputes. We provide answers to these questions and more below.

What rights do biological parents have after adoption in Texas?

In order to answer that question, you first need to understand how adoption works in Texas. The state of Texas takes adoption very seriously and has strict guidelines parents must meet in order to adopt a child in the state, as detailed in?Texas Family Code Chapter 102. We take a deep dive into those requirements and the adoption process on our?adoption attorneys?page but one thing both prospective and birth parents need to understand is how, when and why parental rights are terminated during an adoption.

In order for an adoption to occur in Texas, the parental rights of one or both birth parents typically must be terminated if that parent is still alive. For example, if a stepparent wants to adopt a spouse’s child, the child’s other living parent must relinquish their parental rights or there must be a good reason to terminate that parent’s parental rights involuntarily.

Terminating parental rights in Texas?isn’t easy to do, mainly when the parent doesn’t consent to it. However, the state will agree to do so under certain conditions, where it can be shown that terminating parental rights is in the best interest of the child. (See?Section 161.003 of the Texas Family Code?and visit the?adoption attorneys?page for additional details.)

If you are a birth mother, prospective parents working with an adoption agency or someone hoping to adopt a family member’s child, the timing of the termination of parental rights is also important to know. Specifically, the state of Texas won’t allow a birth mother to formally relinquish her parental rights until at least 48 hours after the child’s birth. The state’s intent is to ensure the birth mother has plenty of time to decide whether or not she will allow her child to be adopted.

Is?regaining parental rights after adoption?possible?

In most cases, no. Once a parent’s parental rights are terminated in Texas, that parent loses the right to have the standing to enter into a lawsuit pertaining to their biological child. That means they do not have a right to bring such a case to court.

Even if the bio-parent simply wanted to enforce, say a visitation right the adoptive parents agreed to or the sharing of pictures the adoptive parents promised, the bio-parent would not have the standing to file the lawsuit. The court essentially treats that parent as if they were dead, at least where the child is concerned.

So, if you’re a biological parent whose parental rights have been terminated, and you’re wondering, “Can you get your child back after adoption,” the answer will likely be “No.” Unless you can prove some sort of fraud or deception occurred, you will have no biological parents’ rights after adoption.

Consequently, if you’re an adoptive parent worried about the birth mother of your child regaining parental rights after adoption, you can breathe easy. The state of Texas views adoptive parents the same way they view biological parents who have parental rights. You are forever more the child’s parent for all intents and purposes unless of course your parental rights are terminated for some reason at a later date.

Can a biological parent regain custody after the adoption of their child by their same-sex partner?

Since the legalization of same-sex marriage in the United States, more gay and lesbian couples have adopted children in Texas. In many cases, one of the parents will be the biological parent of the child, and their same-sex partner will adopt that child.

Parents in these cases often ask us whether the biological parent will have a leg up on the adoptive parent in the event the couple splits and custody of the child needs to be determined. Or if a biological parent lost primary custody to an adoptive parent and wants to file a modification to regain primary custody, do they have a leg up? In both cases, the answer is usually, “No.”

As noted above, the state of Texas generally views biological and adoptive parents as being on equal grounds, with the same rights. Should the couple decide to divorce and the court finds it would be in the best interest of the child for the adoptive parent to have primary or even?sole custody in Texas, the biological parent will have to abide by those orders.

Can a biological parent regain custody after adoption related to an in-vitro pregnancy?

There are many cases where both traditional couples and same-sex couples are unable to have a child on their own, so they seek the assistance of a surrogate, embryo donor and/or sperm donor. If you find yourself in that situation, it’s extremely important to seek the guidance of a?reproductive lawyer?before proceeding with the pregnancy.

Texas surrogacy laws do offer prospective parents, surrogates, and donors some of the best legal protections in the country but the laws and legal documents related to surrogacy are complex. Gestational agreements need to be written in a manner that follows specific guidelines in order to be considered valid enforceable orders.

Our experienced Texas reproductive lawyers help make sure the rights of parents, surrogates, and donors are protected. This includes taking appropriate steps to properly terminate the parental rights of biological parents, like embryo and sperm donors, as well as gestational carriers who have no genetic relation to the child.

Can an adopted child be returned to the birth parents?

Deciding to place a child up for adoption can be a very emotional decision for birth parents, and in some cases, a birth parent may want to back out of an adoption they agreed to. That’s why the state says a birth mother can’t legally consent to terminate her parental rights until at least 48 hours after birth.

The state also allows birth parents 10 days to revoke their consent to the adoption and formally relinquish parental rights. However, once those 10 days have lapsed there’s no turning back, which is why the scenario of an adopted child returning to their birth parents is unlikely.

There are some instances where an adopted child knows their birth parents and may even have or develop a relationship with them. This may be because they lived with their birth parents before being adopted, or because their birth parents and adoptive parents are related or close friends. At some point, these children (or their birth parents) may wonder, “Can an adopted child live with birth parents?”

If the child is under 18 and you are their adoptive parents, where the child lives is generally up to you. At the same time, it can be beneficial for some children to maintain connections with their birth families. If you think your child may benefit from spending some time with their birth parents or relatives, we recommend speaking with a family therapist to determine how to approach the situation.

Have questions about biological parents' rights after adoption?

If you’re wondering, “Can a biological parent regain custody after adoption,” or have other questions about biological parents’ rights after adoption, the child custody lawyers (at the Sisemore Law Firm in Fort Worth have answers. Our reproductive lawyers are also available to discuss options and next steps for in-vitro and?same-sex adoptions.

To arrange a confidential consultation with our firm, please call our office at?(817) 336-4444?or schedule an appointment online.?

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