If you are caring for children who are not your biological children, whether they are related to you or not, you may want to discuss with an attorney how you can continue to provide care in the long term via custody, guardianship, or adoption in Oregon.
A single person or two people, whether a married couple or not, may adopt in Oregon. The process can involve a private agency, the Oregon Department of Human Services (DHS), or be done solely through private attorneys, such as the attorneys at Litowich Law.
Early on in an adoption process, it is important to discuss the biological parents’ consent to the adoption because that will change the way the adoption takes place. Consent is when a person agrees to the adoption and signs some documents to confirm their agreement.
The biological father’s consent is not always needed. Whether a biological father’s consent is needed to complete an adoption depends on whether legal paternity has been established or alleged. There are other circumstances that might do away with the need to get the biological father’s consent, so it is important to talk about that early with your attorney.
The biological mother’s consent is usually needed except for a few narrow exceptions. You should discuss these exceptions with your attorney early on.
Often, even if consent is not required, one or both biological parents, and sometimes grandparents, will need to be notified of the proposed adoption. It is helpful to gather as much information as you can about the biological parents early in the adoption process so that your attorney can complete the necessary notice. If needed, Litowich Law can hire a private investigator on your behalf to locate the parent(s).
The two most commons types of adoption we see at Litowich Law are stepparent adoptions and independent adoptions. Despite its name, you do not need to be married to your partner to complete a stepparent adoption. A stepparent adoption is what we call an adoption that keeps one of the biological parents as a legal parent.
An independent adoption will replace both parents with adoptive parents. The prospective adoptive parents need not be related to the child.
However, if neither of the adoptive parents are related to the child you want to adopt, DHS will likely require the family to submit to a Home Study and require a Placement Report. There are limited exceptions to the Home Study and Placement Report requirements. A Home Study and Placement Report often adds significant time and expense to your adoption, so it is important to discuss this early with your attorney.
Unless waived by DHS, the Home Study and Placement Report are completed by a private outside agency approved by DHS. Litowich Law will help you locate and arrange for this service if necessary.
You or your partner or spouse may be required to obtain criminal and DHS/CPS histories and submit them to DHS. Whether this is required depends on your legal relationship to the child and your length of time residing in Oregon. If your family submits to a Home Study, these histories will be obtained by the agency performing your Study. If you are not required to undergo a Home Study, the background checks will be directed by the attorney handling your adoption.
If you want to adopt more than once child, the cost will increase because Oregon requires separate cases to be filed for each child - even if the adopting petitioners are the same. So, even though Oregon will not require multiple filing fees, the attorney will need to prepare a separate set of adoption papers for each child. It is important to discuss with your attorney how this will affect the legal fees and other costs related to your adoption.
Katherine Denning has assisted hundreds of families in Oregon complete their stepparent, independent, and DHS adoptions and is a licensed DHS adoption vendor. If you are currently working with DHS to adopt a child or children through foster care, you can select Katherine Denning as your attorney in the Fee Agreement process. Katherine and our staff person, Ingrid, can help with every step of the DHS adoption process.
When caring for children who are not your own biological children, people often wonder if they need some legal authority to make medical, education, housing and other decisions for children in their care. Typically, if the child is not your child, it is best for the child in the long term that the care-giver (you) has some legal authority. If adoption is not the best long-term plan, it may be that guardianship or custody would be a better fit.
Whether or not you have a biological relationship to a child in your home, if you meet certain Oregon statutory requirements, you can apply to the Court for custody of that child or children. Because it is so common for grandparents to care for their grandchildren when the parents are not able to, this is often incorrectly referred to as “Grandparent’s Rights.” That term is misleading because there are no special rights for grandparents and everyone who wants to apply for custody of children who are not their own must meet certain criteria – and being a grandparent is not one them.
The first requirement is that you have had a parent and child relationship with the child within the past 6 months. This means that the child lived with you and you provided for that child’s emotional, physical, and material needs as a parent would.
The second requirement is that you must prove that any non-consenting biological parent is not acting in the child’s best interests.
The third requirement is that you must prove that is best for the child to be placed in your custody.
In order to obtain guardianship over a child who is not your child, you must either have consent or prove that the child is need of a guardian and that you are fit to be that guardian. If either of the child’s parents object to the guardianship, you will have to prove that they are not acting in the child’s best interests and that you will. It is similar to custody in that way, except you do not have to prove that you had an existing parent a child relationship.
For a non-parent to obtain guardianship or custody over a child who is not their own, you must either have both biological parents’ consent or prove to the court that their consent is not needed for some reason. This involves serving them with papers in advance and giving them a chance to contest the proposed guardianship or custody.
The primary difference between guardianship and custody is that guardianship involves early and ongoing judicial oversight. Early in a guardianship proceeding, there is often required a Court Visitor Report. A Court Visitor is an individual appointed by the Court to interview you and the child or children (depending on their age), as well as other people who have knowledge about you, the children, and their situation. The Visitor will then prepare a report that includes their findings regarding the appropriateness of the proposed guardianship and submit it to the court. There is a fee for this report that will be paid directly to the Visitor. Litowich Law can help you hire a Visitor to complete this report.
The ongoing judicial oversight comes in the form of an annual Guardian’s report that must be prepared and filed with the court. The attorneys at Litowich Law can assist you with this process.
Neither the visitor nor the annual report is required to obtain custody.
When considering adoption, guardianship, or custody, the most important thing is finding out which option is the best fit to your family’s circumstances and financial resources. Continuing to provide long term care for children who are not your own is best done with some legal authority and we can help you find the best option for your family’s situation.
Katherine Denning is experienced in Adoptions and Child Guardianships.
Sarah M. Litowich is experienced in Child, Adult, and Special Needs Guardianships.
All of the attorneys at Litowich Law are experienced with Child Custody matters.