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Mother & Step Father: adoption process & options

Answered by:dclabm
Advocate
Positive Feedback: 97.2 %
Accepted Answers: 46

Customer Question

Am getting married soon and my fiance already has a child of 5 years old. I want to adopt her child but we are not sure on the process or the steps needed to take to get this undertaken in South Africa. Some other questions we are wondering about... What are the legal steps to follow to start the process? What would the legal rights of a non-involved biological father be?

We are looking for a starting point as well as what issues we could expect with the process, and so on. Greatly appreciate your help. Thanks.

Optional Information:
Province: Gauteng

Already Tried:
Still in the process of looking for more information.

Submitted: 353 days and 14 hours ago.

Category: South Africa Law

Value: R 247

Status: CLOSED

Accepted Answer

Expert: JP replied353 days and 7 hours ago.

JP :

Good morning on this very cold Sunday morning.

JP :

Adoption is quite a complicated process and you will most definitely need an expert to assist you.

JP :

But here is some background to give you the legal perspective:

JP :

In terms of Section 228 of the New Children's Act 38 of 2005 a child is adopted if the child is placed in the permanent care of a person in terms of a court order that has the effects contemplated in Section 242 of the Act.

From the above it is clear that an adoption can only be legal if a court order has been made by a presiding officer of a Children's Court. Thus, a legal adoption is an administrative function of the lower court and Judges of the High Court as upper guardians of children, does not have the such function. Once adopted it follows that full parental powers and guardianship flows to the adoptive parents.

Who may be adopted?

In terms of Section 230, any child may be adopted if:

(a)

(a) The adoption is in the best interests of the child;

(b)

(b) The child is adoptable;

(c)

A social worker must also make an assessment to determine if a child may be adoptable.

When are children adoptable?

(a)

(a) When a child is an orphan and has no guardian or care-giver that is willing to adopt the child.

(b)

(b) When the whereabouts of the child's parent or guardian cannot be established.

(c)

(d)

(d) When a child's parent or guardian deliberately abused or neglected the child.

(e)

(e) Where a child is in need of a permanent alternative placement.

It is interesting to note that a child of 10 years or older must agree in writing to be adopted. Thus the feelings and personal opinion of the child needs to be taken into account.

Where a child is abandoned the norm is that a Social Worker will advertise the adoption in at least one local and national newspaper to attract any extended family members of the child. Although the aforementioned refers only to foster children this seems to be applied in all matter of abandonment.

Who may adopt a child?

Section 231 regulates who may adopt a child. A child may be adopted jointly by:

•

a husband and wife;

•

the partners in a permanent domestic life-partnership;

•

other persons sharing a common household and forming a permanent family unit;

•

by a widower, divorces or unmarried person or a widow;

•

a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child;

•

by the biological father of a child born out of wedlock if the father did not already obtained rights under Section 21 of the Act;

•

by the foster parent of the child.

It is to be noted that one spouse in a marriage may not adopt a child without the other spouse, except in a case where the one spouse is the natural parent of the child. The natural parent keeps all the parental rights and responsibilities and does not lose those rights when the other parent adopts the child, thus the spouses don’t adopt the child together.

It is also clear that homosexual, heterosexual and unmarried couples are also able to adopt a child. Also partners in a customary (polygamous) and Muslim customary marriage are entitled to adopt a child.

In circumstances where a child is adopted by a married person whose spouse is the parent of the of the child the mother will retain guardianship throughout the process. A Social Worker will only recommend such an adoption if the marital relationship is stable and has existed for a reasonable period. Where a mother is not the only guardian of the child the consent of the other parent will also be required. Also where exclusive guardianship was awarded to the mother the other parent’s consent will also be required. In terms of Section 236 of the Act, a parent can approach the Court to have his parental rights re-instated

JP :

I strongly advise you to contact the attorney who wrote this summary his details is as follows:

JP :

XXXXXX@XXXXXXXXXXXXXXX.XX.XX

JP :

I hope that this has been insightfull

JP :

Kindly accept my answer by clicking on the accept!

Kind Regards

JP

Attorney

Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for general information purposes only and to assist you to discuss legal matters with your attorney in person; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but is made as compensation for the obtaining as general legal information for further discussion with your attorney .If you do not agree with these terms and conditions, then you must advise me immediately.

Customer :

Hi JP

Customer :

Hi JP

A definite cold Sunday morning, but definitely looking up to becoming a warmer day later which is splendid to have in winter here in SA right!

Yuor information is interesting and helpful, however I would like to know more in laymans terms what the process (starting point) will be for us to get the process of adoption started.
Me being the step father and my partner being the biological mother of the child.

We also want to be aware of what rights the non-involved biological father have. Would he need to sign any documentation ,etc? We have an unabridged brith certificate which has no biological fathers details on it for the child.

We are looking for the most simple way forward here without any turmoil for us and our little one as much is as possible.

Thanks for taking time on a Sunday to answer questions, looking forward to what you can assist with on this topic for us further :)

Customer :

Hi JP I will update the rating if we can get thie above questions answered in a bit more detail. If the information needed is a bit more in depth and we need to meet with someone could you please advise us with some contact details to start this process. Thank you, kindest regards, Jeremy

Expert Type	Attorney
Category:	South Africa Law
Pos. Feedback:	96.6 %
Accepts:	1063
Answered:	7/1/2012

Experience: General South African Law.

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Customer replied351 days and 16 hours ago.

Relist: Incomplete answer.
Am awaiting for feedback that is a little more friendly in layman's terms and which we also can understand. Copying and pasting legal acts doesn't tell us much on how it works or what the understanding would be further.

Also the questions of the fathers rights was unanswered in our view and that is the main worry of the situation we are in. We want to know the implications we are facing in our future if we proceed with an adoption of our daughter when we are married and cause the least amount of worries in our life is all.

Thank you.

Expert: dclabm replied350 days and 21 hours ago.

Please advise whether mother and biological father was married at birth or thereafter?

Whether biological father had any contact with child since birth?

Was Biological father in any way supportive during pregnancy or there after?

was any bond formed between biological father and child?

how long is your relationship at present?

What bond formed between yourself and your child?

Regards

Customer replied350 days and 1 hours ago.

Hi dclabm

Thank you for responding. Updates below.

Q: Please advise whether mother and biological father was married at birth or thereafter?

A: Never married.

Q: Whether biological father had any contact with child since birth?

A: Contact for a brief period after birth, a few months at that.

Q: Was Biological father in any way supportive during pregnancy or there after?

A: Was present during pregnancy and short while after birth, but not supportive emotionally or monetary.

Q: was any bond formed between biological father and child?

A: No bond formed previously or currently. Child was too young to remember him and currently has no memory of the biological. She see's me as her father.

Q: how long is your relationship at present?

A: Currently one year and counting

Q: What bond formed between yourself and your child?

A: Am already known as "daddy" and see's me as her father. We live together and the transition phase of moving into one home went smoothly without complication.

When she is away with family, e.g. for a sleep over, she asks for mommy and daddy to speak to both of us when we phone to say good night.

I drop her off at school in the mornings as well as pick up in the evenings.

All in all the relationship between us is beautiful and grows on a daily basis. Even reports from school is that her maturity level has grown tremendously over the last several months since living together as a family.

Additional item / information:

Biological father has a logged case against him for assault, case not taken to court (so as to stop harrassment of the family as he would have lost his job)

No maintenance has ever been paid to date.

No contact since a few months after birth has occurred.

Expert: dclabm replied349 days and 23 hours ago.

Hi
with regards XX XXXX initial inquiry

From the brief facts I got from above there seem to be little doubt that you qualify for the adoption as it seems that it will be in the child's' best interest. this process is unfortunately a long and bureaucratic process.

You can approach a social worker in your community or the welfare or an adoption agency to assist you in the process. The social worker would need to file a report on whether the adoption would be in the child's' best interest, after conducting a proper inquiry. Therefor I would advise that you start here, they will be able to give you all the necessary information and steps in the process.

with regards XX XXX biological fathers rights. the biological father obtain full parent rights and responsibility once any of the following factors are present:
1. If he identify himself or allow to be identified with the child
2. if he contribute or attempt to contribute during the child's' upbringing
3. if he contribute or attempted to contribute towards maintenance expenses of the child

The above is a factual question that need to be answered.

If any of the above factors are present then the biological father obtained full parental rights and responsibilities. This mean that his written consent would be required for the adoption.

The written consent can be dispensed with in the following circumstances:

1.If the biological father failed to fulfill his parental responsibilities towards the child for a period of 12 months or longer
2. The biological father failed to respond to a notice of the proposed adoption
3. If the whereabouts of the biological father is unknown or the biological father has abandoned the child.

it seems that you might not need the biological fathers consent in this instance, but the social worker or adoption agency would be in a better position to advise you with all the facts taken into account.

Once the adoption is approved then the biological fathers' rights are taken away to such an extent that he never had any rights or that he never was the biological father.

Hope this has been helpful

Expert: dclabm replied347 days and 23 hours ago.

Just a short follow up on your question regarding the adoption.

Please advise whether you need some more info, and please rate my service.

Regards

Expert: dclabm replied344 days and 5 hours ago.

Hi
According to my records you have not rated my service. If there is no more info required please rate my service.
Regards

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