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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
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Experience:  Attorney experienced in all aspects of family law
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Can a man adopt his soon to be ex-wifes daughter that he has

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Can a man adopt his soon to be ex-wife's daughter that he has raised since she was 18 months old (now is 15) even if they are going to get a divorce? The wife is willing to allow the adoption.
Hello there:

Thank you for your question. A step-parent adoption is legally permissible in Texas even if the parents are intending to divorce. Under Texas Family Code section 162.001(b):

A child residing in this state may be adopted if:

(1) the parent-child relationship as to each living parent of the child has been terminated or a suit for termination is joined with the suit for adoption;

(2) the parent whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption;

(3) the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, the person seeking the adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of six months preceding the adoption or is the child's former stepparent, and the nonterminated parent consents to the adoption; or

(4) the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, and the person seeking the adoption is the child's former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year preceding the adoption.

So it would be permissible under the law. The challenge, however, is that the court has authority to deny an adoption permission if the adoption is not in the best interests of the child. Where an attorney might be reluctant is with regard to whether the adoption would actually be permitted, even if it is legally permissible. You could hypothetically petition the court for the adoption and the court could deny the petition based not on a prohibition but on the best interests of the child.

Obviously, every situation is different, so I have no way of assessing whether the girl you have raised would be better off if she was adopted even if you and her mother are planning to divorce, but if the question is strictly whether an adoption is legally possible, when the adopting parent and legal parent are divorcing, the answer is "yes".

For reference, here is the full code section:

Let me know if further clarification is needed, and once you are completely finished, please feel free to leave a positive rating (I work for ratings). Thanks.
Brandon M. and 8 other Family Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you for the information.


The other circumstances are that the mother doesn't want custody of the kids, she has already moved out of the house and left the 2 kids (also have a 13 year old which is both of ours). She takes them a couple of days per week. I have streams of text messages from the kids from when they are at her place concerning her behavior, drinking, and verbal abuse. There have been quite a few times where I've had to pick them up, sometimes in the middle of the night.


We were told the best way was to have her live in the house while social services was doing their inspections and not mention the divorce (not sure if she would do this). The kids do want to live with me and at their ages I would hope a judge would listen to them. Without the adoption the kids would be split up or more-likely is that the mother would keep making everyone's lives difficult with unscheduled, last minute visitations. I never say no even though it makes things tough on the kids schedules, she seems to hold all the cards in regards XXXXX XXXXX kids.

Hi again.

Obviously, if social services isn't told that you're planning to divorce, they wouldn't be likely to discover the information on their own. I should warn you, however, they do require personal references and conduct a full personal background check, so if someone knows of your plans, the beans might get spilled. If you lie to them and it is discovered, it may significantly hurt your chances of getting the adoption. I'm not in a position to give advice over whether to conceal that fact, but be careful if you do.

Have you considered a guardianship? Guardianships can be awarded when the legal parents are either unwilling or unable to care for the wards. A guardian has custody rights over a child similar to what a parent would have. It's also possible for the legal parent(s) to have custody and visitation rights even if a guardianship is in place.
Customer: replied 4 years ago.

If we were to do a guardianship, is there one where she can't revoke it when she decides to get angry and punish me or the child? Or would she be able to revoke it at anytime?

There's no such thing as an irrevocable guardianship, but it would also be misleading to say that it can be revoked at any time. If the guardian does not want to dissolve the guardianship, the parent would have to take the guardian to court and argue that the guardianship is no longer necessary. It would be similar to two parents going to court over custody. Incidentally, once a guardianship is revoked, the guardian can still ask the court for visitation rights, so it's not like guardian and child will never see each other again.
Customer: replied 4 years ago.

That sounds promising. What is the best way to find a good lawyer? The one I had a consultation with did not even mention the guardianship. I want to know that I'm working with someone good. Thanks.

Where in Texas do you reside?
Customer: replied 4 years ago.


Thank you. In which Texas county?
Customer: replied 4 years ago.

Randall County

Thank you for your patience. Let me refer you to the Amarillo Bar Association for attorneys in your area with the requisite expertise:

You can search among their attorneys for any practice area, including guardianships.
Customer: replied 4 years ago.

Thank you, XXXXX XXXXX been so helpful!