Adoption Basics for the State of Texas

The Rights of the Grandparents

Premarital Agreements

Adoption Basics for the State of Texas

Adoptions can be exciting for many families. At the same time adoption also introduces new legal issues into the family dynamic. For the sake of this article it will be assumed that both the birthparents and the prospective adoptive parents are residents of Texas. 

The first step in a successful adoption is locating an adoption agency. There are two reasons why locating an agency is important or helpful. The adoption agency can help prospective parents locate a birthmother. It may be possible for the prospective parents to do this on their own but an agency will make the screening process easier and more efficient. This is less stressful for the prospective parents. Selecting an adoption agency is also helpful when the birthmother needs financial assistance. Texas does allow private adoptions but if the adoption takes place through an agency financial support for the birthmother above and beyond her legal, medical and counseling expenses can occur. If the birthmother needs living assistance you must go through an agency. It is a felony for the adoptive parent to pay anything other than medical, legal or counseling expenses on the birthmother’s behalf.

Given the legal nature of adoptions an experienced attorney is necessary. The adoption agency may have an attorney that you can work with. This attorney will handle legal issues pertaining to the termination of the birthparent’s parental rights and finalizing the adoption. The agency’s lawyer may handle one aspect of adoption or all so it may still be necessary to find your own attorney. If the adoption is private than an attorney becomes even more crucial to help the families deal with the legal issues correctly. 

Some adoptions do not go as smoothly as planned. This is when law-suits result dealing with the termination-of-parental-rights. The birthmother must voluntarily released her parental rights however she is not allowed to sign her affidavit of relinquishment until 48 hours after the birth of the child. When the adoption takes place through an agency it is irrevocable the moment it is signed. In private adoption this affidavit is irrevocable for a period of 60 days when the affidavit specifically calls for this and on the 61st day it is revocable if the birthmother’s rights were not terminated by the courts. If a period of irrevocability is not provided in the affidavit then it is irrevocable for 10days and revocable on the 11th day. 

Adoptions tend to focus solely on the birthmother but the birthfather is still an important part of the adoption process. If the birthmother is married than her husband is considered the father of the child whether or not this is biologically true. The birthfather must have his parental rights terminated as well. The birthfather can sign an affidavit of relinquishment 48 hours after the birth of the child. An “alleged father” (not the presumed father) can sign an affidavit at any time relinquishing his rights to the child. If the birthfather does not sign the affidavit his rights must still be terminated legally. An attorney will help you explore your options for involuntary termination. 

In every adoption, private or through an agency, a homestudy is required by the Texas Family Code before a child enters your home. The homestudy report is filed with the termination of parental rights in private adoptions. The Texas Family Code allows for a minimum of six months for a child to be in your home before the adoption is finalized. 

Sources: 
Womack, Jenny L. Texas Adoption Basics. Texas Bar Journal. Vol.69 No.5. 493

The Rights of the Grandparents

Grandparents make an invaluable contribution to the lives of their grandchildren. The legal rights of grandparents in a custody battle are hard to define. It is best to seek your attorney in order to determine the process you should take to remain close to your grandchildren. 

Being a grandparent does not automatically give you legal right to file suit for possession, access or custody of your grandchildren. There are other requirements that need to be met before you can legally file suit. In the case of filing for custody against the will of the parents it must be shown that the grandchild lived with the grandparents for at least six months or that the child’s present circumstances would impair the child’s health or emotional development. 

If you do not qualify to file an original suit for possession or conservatorship of the child other avenues are available. A grandparent may intervene against the will of the child’s parents under certain circumstances. If is best to meet with your family law attorney to discuss the qualifications for these alternate avenues and if they are right for you and your circumstances. 

If it is determined that you have legal right to file suit you still must show the court you meet certain considerations to granted custody. Grandparents seeking managing conservatorship must prove that the appointment of the parents and managing conservators would not be in the best interest and would impair the child’s physical and emotional health. It may also be necessary to prove that the child’s parents are unfit. 

If you are not seeking conservatorship and are just looking for the legal right to access your child there is a legal remedy available for your situation. It is assumed that your right to access is against the will of the child’s parents. Access can be granted for the grandparent if at the time of the request at least one of the parent’s rights gave not been terminated by a court order, access is in the grandchild’s best interest or the grandparent’s own child (the parent of the grandchild in issue) has been in jail/prison for three months prior to filing or has been found incompetent by the court. Also access can be granted if the parent is found unfit or denial of access to the grandchild would significantly impair the child’s physical health or emotional development. 

There is a fundamental legal presumption on the grandparent in cases where the grandparent is seeking custody or access. The courts presume that a parent, not extended family which includes grandparents, should raise his or her own child. This presumption holds true unless it is proven that it would impair the child physically or emotionally or it there is a finding of a history of family violence involving the parents. 

Source: 
Nichols, John F. What Are My Rights As A Grandparent. Texas Bar Journal, Vol. 69, No. 1. pp93-4

Premarital Agreements

A premarital agreement is a contract between two people who are about to marry that provides protection against the creation of community property during a marriage. “Community Property” is the property that the court has the discretion to divide during a divorce. A premarital agreement lists all assets and liabilities as well as their values at the time of marriage. The parties can then stipulate that their respective property remains separate and that the growth or interest on that property remains separate. Once it is found that the property is separate the court cannot divest a person of their separate property.

The majority of premarital agreements are signed when one party or both have a significant estate. Any couple who wants to decide how property should be divided in the event of death or divorce rather than leave this decision to a judge should get a premarital agreement. Almost anything that is not criminal or against public policy can be contracted into a premarital agreement.

One attorney is needed to draft a premarital agreement however both parties should have their own counsel to protect their best interests. Premarital agreements can only be reworked or amended in writing. Physically destroying the agreement will not defeat the agreement. The premarital agreement can also expire on its own terms, either in part in total. A premarital agreement will also still allow for the creation of some community property. The agreement must be specific to the terms and conditions of the community property. 

In order to ensure that your premarital agreement holds up in court the agreement needs to be precise and unequivocal as to the intent of both parties. The courts are bound to the agreement as long as it is proven that there was full and complete disclosure of assets and liabilities prior to signing, that the agreement itself is not unconscionable on any terms and that both parties signed the agreement willingly. After marriage the parties should ratify their agreement to include a “partition and exchange agreement.” The courts can also approve the agreement and declare its enforceability as a contract immediately. 

Source:
Kaighen, Sondra, June 2001. Premarital Agreements: Common Questions and Answers. www.texasbar.com