Who May Adopt: Overview

Welcoming a new child into a family is a joyous and exciting occasion. If individuals or couples choose to expand their families through adoption it also can be a lengthy and confusing process. Before a state will allow an adoption, prospective parents must meet certain requirements. Below is a brief overview explaining basic guidelines for who may adopt a child.

Who May Adopt: General Requirements

In general, any single adult or a married couple together is eligible to adopt. A stepparent may also adopt the birth child of their spouse. Some states allow married persons to adopt alone if they're legally separated from their spouse or if their spouse is legally incompetent. In approximately 17 states and the District of Columbia, there are no additional conditions specified.

Age Restrictions

In approximately six states (Kentucky, Louisiana, Montana, New Jersey, Tennessee, and Washington), a person must be at least 18 years old to adopt. Three states (Colorado, Delaware, and Oklahoma) and American Samoa set the age at 21 and Georgia and Idaho specify age 25. A few states allow minors to adopt under certain circumstances, such as when the minor is the spouse of an adult adoptive parent or when the minor is the unmarried birth parent of the child to be adopted.

Other states have age restrictions that require an adoptive parent to be older than the adopted person by a certain number of years. In approximately six states (California, Georgia, Nevada, New Jersey, South Dakota, and Utah) and the Northern Mariana Islands, the adopting parents must be at least 10 years older than the person to be adopted. In Puerto Rico, the adopting parent must be at least 14 years older and in Idaho, the parent must be at least 15 years older.

Residency Requirements

Approximately 17 states, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands require that petitioners for adoption be state residents. A person’s legal residence is the location of that person’s permanent home or primary home. The required period of residency ranges from 60 days to one year depending on the state. However, there are exceptions to the residency requirement in some states.

For example, in South Carolina and Indiana, a nonresident may adopt a child with special needs. In Illinois, Mississippi, New Mexico, and Rhode Island, a nonresident may adopt through an agency.

Selected State Adoption Laws

Determining who may adopt typically starts with an examination of state laws. While age and residency are important criteria in all states, other requirements and restrictions may apply. The following is a sampling of state adoption requirements:

  • California - Must be 10 years older than the child unless it's a stepparent, sister, brother, aunt, uncle, or first cousin and the court approves.
  • Florida - May be an unmarried adult. Married person must be joined by spouse unless such spouse is parent and consents, or failure to join in consent is excused.
  • Ohio - May be an unmarried adult; unmarried minor parent of adoptee; or husband and wife (at least one of whom is adult) together, unless legally separated or under certain other circumstances.
  • Pennsylvania - Any person may adopt.
  • Texas - Any adult may adopt; if petitioner is married, spouse must join (unless one is parent of child).

Gay and Lesbian Adoption

Prior to a 2017 Supreme Court ruling (Pavan v. Smith) requiring all states to treat same-sex couples the same as opposite-sex couples in the issuance of birth certificates, most state laws were largely silent on the issue of adoption by gay and lesbian individuals.

Florida and Mississippi had statutes that explicitly prohibited adoption by homosexuals (which are now overruled). Similarly, Utah barred adoption by persons who were cohabiting but not legally married, but that also has been overruled.

Can You Adopt a Child? Let an Attorney Help Your Family

Understanding exactly who may adopt can be a complicated and confusing process, determined largely by state laws. There may also be certain requirements, such as a home study period, before an adoption is finalized. Don't go it alone; get the assistance of a family law attorney, who can help clarify the process and its requirements in your state.

Next Steps

Contact a qualified attorney specializing in adoptions.

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