Standard for Adoption in Alabama

The right to adopt in Alabama is a creature of statute, not common law. So unless the statute “by express provision or necessary implication” confers the right of adoption, it doesn’t exist. Courts require strict adherence to the statutory requirements in adoption proceedings. Just how strict was the question before the Alabama Court of Civil Appeals in Hays v. Hays, Case No. 2040482 (Ala. Civ. App. June 23, 2006).

The biological mother appealed from a judgment entered by the Marshall Courty Probate Court permitting the adoption of the mother’s child by the child’s former stepmother (let’s call her Stepmom). The chronology is critical:

  • The child’s father and Stepmom were married until the death of the father in April, 2004.
  • Stepmom filed a petition to adopt the child on June 15, 2004, after the father’s death.
  • The child became an adult on June 17, 2004.
  • The Alabama legislature amended the Alabama Adoption Code (AAC) on August 1, 2004 to extend the scope of adult adoptions, specifically permitting adult stepchild adoptions by consent.
  • The daughter executed a written consent to the adoption on September 2, 2004, pursuant to Ala. Code § 26-10A-6.

Ala. Code § 26-10A-6 defines persons who are eligible to be adopted. If a person is not a minor, he or she must be totally disabled, must be mentally retarded, must consent in writing to be adopted by a married couple, or must consent in writing to be adopted by a relative, including a stepparent by marriage.

The appeals court examined the term “stepchild by marriage.” It said that the stepparent-stepchild relationship is created by marriage (“affinity”) and exists only for so long as the marriage continues. That is, when the marriage ended, either through death or divorce, the stepparent-stepchild relationship ceased to exist.

And in a breathtaking leap of logic, the appeals court presumed that the state legislature knew the law when it passed the statute. Moreover, it said, the plain language of the statute called for the same result.

Therefore, based upon (1) the absence of an express provision providing otherwise, (2) the plain language of the statute, and (3) the aforementioned legal principles, we are constrained to hold that the daughter, at the time of the purported adoption, was not a “stepchild by marriage” of the stepmother pursuant to § 26-10A-6(2)c. Consequently, we reverse the judgment granting the stepmother’s petition to adopt the daughter and remand the case for further proceedings consistent with this opinion.

4 comments

  1. Julie B says:

    I am 33 and am estranged from my bio-mom and would like to be adopted by my stepmom. I think if the daughter, even as an adult whether or not her father was deceased or not wanted to be adopted by her stepmom then the Courts should have allowed this to happen. No one knows the full situations in these cases and quite often the step parents do more than the biological parents. This gave me the information I needed because from this it sounds as if I may be able to be adopted by my stepmom without my estranged moms “permission”. I found this story to be sad but typical for Alabama and hope that the daughter will press on in further courts.

  2. Bev. says:

    Hi guys, we have an association for those of you that have had to deal with DHR in Alabama
    or are dealing with them now. The associations name is SAFE and it stands for Society of
    Advocates for Family Empowerment. We are a group of foster/adoptive and birth families
    that want what is best for our children and cannot get it from DHR. Most of us have the
    inside knowledge of what is really going on and how the children are left behind. We have
    meetings approximately every three weeks. If you would like to be a part of this
    organization, email me.

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