Understanding custodial adoptions in Colorado

Coloradoans who have already taken children into their homes and care may choose to make the situation permanent through a legal custody adoption.

Whenever possible, it is important for children in Colorado to stay with their biological families. However, sometimes being raised by their birth parents is not in the children's best interests, often due to abuse, abandonment, or neglect. In such cases, children sometimes end up being raised in alternative homes. Sometimes, those who take over a child's care may want to make the situation permanent and complete a custodial adoption.

What is a custodial adoption?

A custodial adoption is a permanent adoption option for people who have already been caring for a child for over a year in their home and who have previously been awarded guardianship or allocation of parental responsibilities ("APR") of the child by a court of competent jurisdiction. For example, foster parents, distant relatives, and other third party caregivers, who have had a child living with them for over a year and who have been awarded legal custody or guardianship by a court of law may pursue a custodial adoption.

Who can adopt children in custodial adoptions?

There are certain limitations on who is able to adopt a child through a custodial adoption. As is the case with all adoptions, state law specifies that people who are seeking to adopt must be 21 years old or older. In certain circumstances, the court may grant permission to adopt to people who are under 21 years old. Further, a legally married couple must seek to adopt jointly.

Some people who otherwise meet the adoption requirements may be excluded due to their criminal history. People cannot adopt through a custodial adoption if they have been convicted of certain felony offenses. These include child abuse, unlawful sexual behavior, violent crimes, physical assault or battery or a drug-related offense that occurred within five years, or domestic violence that occurred within ten years.

Persons seeking to pursue a custodial adoption often must complete and be approved for adoption through a homestudy by a licensed private adoption agency or county department of human services. A homestudy is a detailed assessment of the prospective adoptive family to ensure that they are suitable to adopt. In some situations, however, the court presiding over the adoption proceeding may waive the homestudy requirement in a custodial adoption.

When can a child be adopted through a custodial adoption?

Not every child who lives with someone other than his or her parents under an alternative legal arrangement of guardianship or APR is eligible for adoption. Certain circumstances must exist in order to legally free a child in a custodial adoption proceeding. These include the following:

• Written and verified consent has been obtained from the child's parents;

• The court agrees to a voluntary relinquishment of parental rights by the child's parents; or

• The legal parent-child relationship is terminated by demonstrating by clear and convincing evidence at a trial that termination is in the child's best interests and that the birth parents have either abandoned the child for a period of one year or more or that the birth parents have failed without cause to provide reasonable support for the child for a period of one year or more.

Additionally, the court may allow a custodial adoption if the court-appointed guardian gives his or her consent. This is only the case in situations when both of the child's parents are deceased.

Working with an attorney

Adopting a child through a custodial adoption in Colorado is often a complicated process. Therefore, those who are considering taking this step will likely benefit from seeking legal guidance. An attorney may help them understand the procedures involved and what is required of them, as well as guide them through the process. In a contested custodial adoption whereby the birth parents are objecting to the adoption, an attorney will handle the bench trial seeking to involuntarily terminate the birth parents rights. A federal tax credit may well be available to financially assist with legal fees in connection to a custodial adoption.