When an Adoption Process is a Little Hague-y

Navigating a step-parent adoption under the Hague Convention

When we think of step-parent adoption, we probably imagine a situation similar to that of the “Brady Bunch”. One or more families melded together into a single, happy unit. Simple, right? 

The show, of course, chose not to address the legal process of getting to that single unit, but we imagine, with how well-adjusted everyone is, that the process was fairly simple and straightforward. While the exact scenario can play out in an endless number of ways, when a biological parent marries another adult, that adult may be able to adopt their spouse’s child. 

Note the use of “may” in the previous sentence. 

Plenty of situations will present hurdles for a step-parent when adopting their spouse’s child, ranging from having a prior criminal record to simply not obtaining the other biological parent’s consent. The rules and procedures governing step-parent adoption make navigating the process fairly simple and straightforward, but sometimes additional factors create a layer of complexity, such as the birthplace of the child, especially if born outside of the United States.  

 

The Hague Convention

The Hague Convention is an international agreement that establishes standards of practices intended to safeguard intercountry adoptions. When a child is born and considered a resident outside of the United States in a country that is a party to the Convention, all adoptions by United States citizens must adhere to the practices established by the Hague Convention.

The most common scenario for an adoption under the Hague Convention is when a United States couple, resident in the United States, decides to adopt an orphan from another country. If that country is a party to the agreement, the process can simply convene under the standards set forth by the Convention. 

A less common scenario under the Hague Convention is a step-parent adoption of a foreign-born child. This process is significantly more complex, and may require several steps prior to filing for adoption. It is highly recommended to consult with an attorney prior to filing for adoption in general, and imperative to consult with an attorney when you think the Hague Convention may apply. 

To be eligible to apply for adoption under the Hague Process, the adopting party must be a United States citizen. This individual’s spouse must also have lawful immigration status in the United States. Once both individuals have legal immigration status in the United States, the two individuals must go through both the immigration (of the child) and adoption process on behalf of the child together. 

To understand why this process could be complex in the case of a step-parent adoption, consider this hypothetical scenario: 

 

Biological Father from the U.K. and U.K.-born son visit America under a Visitor’s VISA. While in the United States, he meets a woman, falls in love, and marries her after a few short months. When planning out their lives together, the couple decides that step-mother should adopt the child. Biological Mother, while also a U.K. citizen, has been completely out of the picture for years, and Father has no doubt that Mother would consent to an adoption. They head over to the same Courthouse where they obtained their Marriage Certificate, and begin to face a series of hurdles almost immediately, before they could even get started. 

The most obvious hurdle the couple faces is that biological Father is not a United States citizen or permanent resident. In these types of cases, it is imperative that you speak with a knowledgeable attorney before you file anything. Immigration is a delicate, often one-time-only process, so it is crucial to consult a legal expert. The Visitor’s VISA does allow individuals to marry while visiting the United States, however, traveling to the United States to marry someone with the intention of seeking an adjustment of status seeking permanent residence is visa fraud, and suspicion is raised if the adjustment is filed within a couple months after arriving in the United States. In theory it is assumed, however, that the adoption process will move more smoothly under the Hague Convention once Father successfully gains lawful immigration status in the United States. 

Suppose Father never legally emigrates from the U.K., given enough time, the child may be able to gain lawful immigration status. A family-based petition, which may be available to the parties, may be able to help with the  immigration status of the child. This family-based petition can be filed by a United States Citizen on behalf of the child, however, there is a custody and co-residency requirement of at least two (2) years. 

Whether through the Hague Convention or through a family-based petition, a step-parent adoption of a child born outside of the United States will take time, so it is important to take the time to follow the procedures correctly.

The content presented on this page is no substitute for legal advice.  To ensure you understand the process, requirements, and procedures of your specific case, you should contact a reputable attorney to help you navigate this difficult process. If you want to discuss your step-parent adoption, please do not hesitate to contact Attorney Jennifer Dickquist at info@jdlawpa.com.  

 

For more information about the Hague Process, please consider these resources:

PA O.C. Rule 15.8. Registration of foreign adoption decree

PA O.C. Rule 15.9. Petition for adoption of a foreign born child

U.S. Department of State- Bureau of Consular Affairs: Visitor VISA

USCIS Policy for Determining Habitual Residence in the U.S. for Children from Hague Convention Countries

U.S. Citizenship and Immigration Services: 21.4 VISA Petition by Citizen or Lawful Permanent Resident for a Child, Son or Daughter

USCIS Policy Manual Update

 

If you would like additional information regarding adoption, please contact our office for further consultation.

This article was written by writer and contributor, K. Gleason

© 2019 JD LAW. ALL RIGHTS RESERVED

 

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