The adoption process of our partner’s child and the consent of the biological parent.

In family law matters, a recurring question we are often asked is: “Can my current partner adopt my child from a previous partner? And, if so, “Can his or her surname be used instead of the biological parent’s surname? The truth is that there is no short answer, as it will depend on a number of circumstances.

If the biological parent is deceased, or his or her identity is never known, there is less of a problem. However, this is not the most typical case, but the one in which one of the parents (whom we will call absent) has always, or for a long time, neglected his or her child, while the other parent, who has taken up a new life with a new partner, has been taking care of all the child’s needs, together with this new partner.

In this situation, there are two options: either the absent parent is willing to make official his or her disinterest in the child, thus consenting to the adoption; or, despite having demonstrated that he or she has no interest in the child, the absent parent decides to hinder the process and not to consent, which would prevent the adoption from going ahead. In this situation, there are two options: either the absent parent is willing to make official his or her disinterest in the child, thus consenting to the adoption; or, despite having demonstrated that he or she has no interest in the child, the absent parent decides to hinder the process and not to consent, which would prevent the adoption from going ahead.

The only way to dispense with the consent of the absent parent is if he or she is deprived of the exercise of parental authority by a prior court decision, or if the grounds for this are present, even if he or she has not yet been deprived of parental authority. And this circumstance, the deprivation of parental authority, will not be an insurmountable difficulty in these cases of absent fathers.

Parental authority is an inalienable right and duty of parents towards their children, which can only be taken away by judicial decision. It includes the functions of: looking after them, keeping them in their company, feeding them, educating them, providing them with an integral education, representing them and administering their property. These are powers and faculties that the absent parent will presumably never have exercised or will have not exercised for a long time, which will be the basis for the request to the Court for their deprivation. The key and what the judge will attend to, as in all matters involving children, is the best interests of the child, i.e. if it is understood that it is in the best interests of the child that the absent parent does not exercise parental authority, this will be decided.

On the other hand, absent fathers should bear in mind that, patrias potestas apart, their attitude constitutes an offence of abandonment of the family, punishable by 3 to 6 months’ imprisonment, which will also serve as an asset to persuade him to consent to the adoption without hindrance.

Once the absent parent’s consent has been obtained or is not necessary because he or she has been deprived of parental authority, the adoption process has a chance of success, provided that the judge considers that the adoption is in the best interests of the adopted child, who will also have to be heard at the trial. Once the adoption process has been successfully completed, the change of surnames will in principle be a mere formality.

Each person has different circumstances and each case is different. If you are going to embark on this journey, do not embark alone, contact us and we will give you advice on what measures to take and how to act in your specific case; so that your family, which is already a reality, is also a reality on paper.