Home Firm Overview Attorney Profiles Frequently Asked Questions Case Results Contact Us

It's The Law: Adopted Children Are Legally The Same As Children Born To The Adopting Parent

Question: My wife and I recently adopted a child. Will our adopted child be treated legally just like our other children?

Answer: Chapter 63 of Florida Statutes governs adoptions. That chapter not only addresses adoption, but also termination of a birth parent's parental rights. Unless the birth parent is dead or waives parental rights, a court must first terminate his or her parental rights before considering adoption.

Chapter 732 of Florida Statutes addresses inheritance rights of adopted persons. Section 732.108(1) makes an adopted person a descendant of the adopting parent just as a naturally born child.

A final judgment terminating parental rights severs the legal relationship between the birth parent and child. A final judgment of adoption creates a new parent child relationship, under which the child is treated at law as if he or she was born to the adoptive parent. Florida, even issues a new birth certificate with the adoptive parent shown as the child's parent.

The federal government also recognizes adoption as creating a parent child relationship. The Internal Revenue Code provides that a legally adopted child or a child placed in a tax payer's home for adoption is to be considered "a child...by blood." This allows the adoptive or adopting parent to claim the child as a dependant on federal income tax returns. The Internal Revenue Code allows adoptive parents to claim a tax credit of up to $10,000.00 per adoptive child for qualifying adoption expenses such as attorney's fees, court costs and home study fees.

Florida statutes also mandate that if the adoptive parents have private health insurance, the health insurer provide coverage for the adoptive child from the moment of placement in the residence of the insured. Except in the case of a foster child, the policy may not exclude coverage for any preexisting condition of the child.

The law becomes a bit more muddled when dealing with adoption by a step parent. In Florida, adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family for inheritance purposes. Adoption of a child by a close relative (the child's brother, sister, grandparent, aunt or uncle) also has no effect on the relationship between the child and the families of the deceased natural parents for inheritance purposes. In these situations, the adopted child not only gains right to inherit from the adoptive parent, but also retains those rights with respect to the natural parent.

The law can get murkier still in the area of virtual or equitable adoption. These adoptions are not formally approved or authorized by a court. Instead, they involve agreement between the natural and adoptive parents under which the natural parents give up custody to the adoptive parents and the adoptive parent raise the child as their own and hold the child out to the community as their daughter or son. In these situations, the child is treated as the birth child of the adoptive parents for both inheritance and parental obligations, including child support.

Although Florida law clearly establishes adopted children status and rights equal to naturally born children of the adoptive parents, it does not automatically recognize adoptions in other states or other countries. Florida's recognition of a foreign adoption requires an order in the other state or country issued pursuant to due process of law by a court or authorized body of such jurisdiction. Absent that order, Florida courts will refuse to recognize the adoption. That was the case inKupec v. Cooper, where the Florida court refused to recognize a German adoption because there was no judgment of any court providing for adoption of the child and no evidence that German adoption law was similar to Florida law.

An adopted child is generally treated as the natural born child of the adoptive parent. However, the facts and circumstances of a particular case can change the result. For specific advice concerning your situation, you should consult with an experienced attorney.

Categories: Articles