There are many reasons that a child may need an adoptive home. As a society, we are increasingly recognizing and respecting the fact that some people do not want children, now or ever. Others may be open to having children at some point, but not at this point in their lives. Realistically, an unplanned pregnancy can come along for people in both those groups. But it can also happen that a child ends up either as an orphan or with only one biological parent through the death of one or both of the biological parents. Not only is adoption often a beneficial and loving choice for a child when a birth parent is deceased, but there are specific laws for that situation in Arkansas.
Consent
The most basic law about adoption in Arkansas is that the biological parents must both agree, if they have parental rights, to give up those rights and allow their child to be adopted. This is true for stepparent adoption, too.
Sometimes a birth mom may not know the identity of the biological father or may not have been in contact with him. In those cases, his consent is not required.
Sometimes one or both of the birth parents is unable to care for the child because of substance abuse, mental illness, or another circumstance that means that the child would not be safe with the person in question. In such cases, involuntary termination of parental rights may take place and allow adoption without the birth parent’s consent.
Certainly, if a birth parent is deceased, he or she cannot provide consent for adoption.
A legal difference
This situation has a key legal difference from the other situations we’ve described, and it is different from most adoptions in one important way. If the deceased birth parent has living parents and they already have a relationship with their biological grandchild, they may request visitation after the child is adopted.
When someone gives up their parental rights, they no longer have a legal relationship with the child. They are not the parent of that child legally. Their family members are also no longer legally related to the child. There are special cases for some siblings, but the grandparents lose their rights to be the grandparents of the child.
However, if Grandma has already developed a relationship with her son’s child and her son passes away, she maintains the connection. If the child is adopted, she can ask for visitation and the court can award it to her.
Potential problems
Maintaining that precious relationship can be very important to the grandparent, who is also grieving for their child. But there can also be real problems, especially if the visits are court-ordered and the adoptive parents don’t welcome them.
Some of the issues that might arise:
- Divided loyalties. If the grandparents emphasize the relationship between their child and the grandchild, it can be confusing for the child. Adoptive parents won’t necessarily know that a grandparent is talking about “your real daddy” or trying to encourage sorrow over the loss. In the case of a stepparent adoption, a divorced couple may have had animosity in their relationship. If one of the partners passes away, animosity between grandparents and the living parent may remain.
- Confusion. Even without any malice or poor judgement on the part of the grandparents, the visits could be confusing for a young child. Having several sets of grandparents is not uncommon nowadays, but kids may be uncertain about how the grandparents fit into their new family.
- Stress and conflict. If the adoptive parents don’t agree to the continuation of the relationship, it may play out in court. For example, what is the definition of an existing relationship? If Grandma took care of the baby every day, there’s no uncertainty, but visits on holidays might not stand up in court. It depends on what’s in the child’s best interests. Courtroom arguments about these things can be stressful and costly, though, regardless of the final ruling.
Solutions
Communication can make a big difference. If the grandparents and the adoptive parents can find areas of agreement and work out a plan — much as parents work out an open adoption plan — then it can be a blessing for the child to have another loving relative in his or her life.
It’s very important to have an experienced, knowledgeable adoption lawyer to help you through the twists and turns of adoption, no matter what your personal adoption journey looks like. Heimer Law specializes in adoption and has helped many families through the process. Call us or fill out our contact form and we will be in touch.
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