613 So. 2d 900 | Fla. | 1992
The Board of Governors of The Florida Bar petitions us for approval of forms under Rule Regulating The Florida Bar 10-1.1(b). We have jurisdiction. Art. V, § 2(a), Fla. Const. The forms deal with stepparent adoptions and we approve them.
Rule 10-1.1(b) permits “nonlawyers to engage in limited oral communications to assist a person in the completion of a legal form approved by the Supreme Court of Florida.” Under the rule, oral communications between the nonlawyer and the individual being assisted are restricted to “those communications reasonably necessary to elicit factual information to complete the form and inform the person how to file the form.” Rule 10-1.1(b) fosters access to the courts while protecting the public from advice from unqualified persons. The Florida Bar, in furtherance of these goals, is defining areas amenable to forms practice and developing simplified forms. The forms are the fill-in-the-blank type and merely require the insertion of factual information into the appropriate blank.
In addition to the proposed forms, the bar has prepared information about the use of the forms, titled “Appendix 5,” and specific instructions for each of the six forms. While we authorize the publication of the information and instructions, we do not express an opinion on the legal correctness of either. Because local procedures may vary from circuit to circuit, the chief judge of each circuit is authorized to prepare supplemental directions for the use of the approved forms. Supplemental directions shall be filed with the clerk of the court in the respective circuit and with the clerk of this Court.
An objection to the forms was filed by Daniel T. Carpenter, Esquire, who practices in the area of family law. Mr. Carpenter writes:
A lawyer is needed to explain that the adoptive parent may be liable for child support in the event of a later divorce, could be liable in litigation for the actions of the child and that the child will inherit from him.
In addition, the child’s other biological parent will be excused from a child support obligation and the child will not inherit from the biological father’s family any longer....
*901 Posting a warning is not, in my opinion, sufficient....
We share Mr. Carpenter’s concerns. We therefore direct that the following language be added to forms 56A, 56B, and 56C:
We also received comments from Mr. Peter B. Dolinger, owner of Florida Prisoner Legal Research and Representation Services. We find the substance of Mr. Dol-inger’s comments already covered in rule 10-1.1(b) or in the forms, as revised by the bar, to reflect changes in witnessing requirements in section 63.082, Florida Statutes (1991).
Having considered the petition and comments submitted, we approve the forms effective upon the filing of this opinion. The forms and the bar’s appendix described above are attached as an appendix to. this opinion. The forms include:
FORM 56A — PETITION FOR ADOPTION BY STEPPARENT
FORM 56B — CONSENT AND WAIVER BY PARENT
FORM 56C — CONSENT TO ADOPTION BY ADOPTEE
FORM 56D — AFFIDAVIT OF DILIGENT SEARCH
FORM 56E — FINAL JUDGMENT OF ADOPTION
FORM 56F — PETITION FOR ADOPTION INFORMATION AND ORDER RELEASING ADOPTION INFORMATION
Each form shall bear the notice: “Approved for use under rule 10-1.1(b) of the Rules Regulating The Florida Bar.” The approval of these forms in no way authorizes a nonlawyer to give legal advice or to modify the forms.
It is so ordered.
APPENDIX 5 — STEPPARENT ADOPTIONS
What is an adoption?
An adoption creates a legal relationship between a parent and a child that previously did not exist. It declares that the child is legally the child of the adoptive parent. The child becomes the adopting parent’s legal heir. The child is entitled to all of the rights and privileges and subject to all of the obligations of a child born to the adoptive parent. An adoption ends the rights of a birth parent and creates rights for the adoptive parent.
Who may be adopted?
Any person, a child or an adult, may be adopted. In adoption proceedings the person who is being adopted is known as the “adoptee.”
Who may adopt?
The following persons generally may adopt:
1. a husband and wife together;
2. an unmarried- adult, including the birth parent of the adoptee;
3. the unmarried minor birth parent of the adoptee.
A married person also may adopt alone if the person to be adopted is not his or her spouse and if the other spouse is a parent of the person to be adopted and consents or the other spouse’s failure to consent is excused by the court because of prolonged unexplained absence, unavailability, incapacity, or circumstances the court decides constitute unreasonable withholding of consent.
A person who is otherwise eligible to adopt may not be prohibited from doing so solely because of a physical disability or handicap, unless the disability or handicap
A homosexual may not adopt in Florida.
The person adopting must be a Florida resident.
Who must consent to an adoption?
Unless the court does not require it, a petition to adopt a child under age 18 may be granted only if
1. the mother signed a written consent after the birth of the child;
2. the father signed a written consent if
a. the child was conceived or born while he was married to the mother;
b. the child is his by a previous adoption;
c. the child has been established to be his by a court proceeding; or
d. he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the child and has filed the acknowledgment with the Vital Statistics Office of the Department of Health and Rehabilitative Services and he has supported the child in a repetitive manner; and
3. the child, if older than 12 years, has signed a written consent.
A petition to adopt an adult may be granted if
1. the adult and the adult’s spouse, if any, have signed written consents to the adoption; and
2. the adult’s birth parents have signed written consents to the adoption or proof of service has been filed showing that notice was served on them and they have failed to respond.
The court may choose not to require consent to an adoption by:
1.a parent who has deserted a child without giving a means of identification or who has abandoned a child (note, however, that a diligent effort must be made to notify the parent and obtain consent);
2. a parent whose parental rights have been terminated by a court order;
3. a parent who has been declared incapacitated by a court and for whom restoration of capacity is medically improbable;
4. a legal guardian or custodian of a person to be adopted, other than a parent, who has failed to respond to a request for consent for 60 days or who, after examination by the court, is found to be withholding consent unreasonably.
What is the procedure for an adoption?
1. File an original and one copy of
a. the petition (Form 56A) and the child’s birth certificate;
b. the necessary consents (Forms 56B and 56C);
c. the Affidavit of Diligent Search (Form 56D), if necessary; and
d. the UCCJA Affidavit (Form 56)
in the office of the clerk of the court in the courthouse of the county you live in or where the child lives. Keep one set of copies for yourself and send a set of copies to the Department of Health and Rehabilitative Services office in your county.
2. The judge will set a time and place for the hearing on the petition. In an adoption by a stepparent, the hearing can be held immediately after the petition is filed and a copy has been sent to the Department of Health and Rehabilitative Services.
3. The person who filed the petition to adopt must give the following people notice about the time and place of the hearing:
a. any person whose consent was required but who did not consent; and
b. any person who gave consent but wants to withdraw it.
If the petition is for adoption of an adult, notice of the time and place of the hearing must be given to anyone who was required to consent to the adoption but did not.
4. The judge may order an appropriate investigation to assist in determining if the adoption is in the best interest of the people involved.
6. Fill out items 1-9 of the Final Judgment of Adoption (Form 56F) and take it with you to the hearing. At the hearing, the judge may ask you questions about the information you provided in these forms. If the judge determines that all necessary consents have been obtained and the adoption is in the best interest of the adoptee, the judge will complete and sign the final judgment of adoption.
7. After the final hearing, go to the clerk of the court’s office and ask for the following:
a. an application for an amended birth certification;
b. at least three certified copies of the final judgment (note that the file is sealed 72 hours after the final hearing and after that an order from the judge will be needed to open it).
What forms are required?
The following forms are required for a stepparent to adopt his or her spouse’s biological child:
1. Petition For Adoption By Stepparent (Form 56A) — This is filled out and signed by the adopting stepparent and the birth parent to whom the adopting stepparent is married. A copy of the child’s birth certificate must be attached.
2. Consent and Waiver By Parent (Form 56B) — This is filled out and signed by the parent to whom the adopting stepparent is not married (the “nonresidential parent”), unless consent is waived or not required. See “Who is required to consent to the adoption?”
3. Consent to Adoption by Adoptee (Form 56C) — This is filled out and signed by the person being adopted (the “adop-tee”) if he or she is more than 12 years old.
4. Affidavit of Diligent Search (Form 56D) — This must be filled out by the adopting stepparent and the birth parent to whom the stepparent is married if the child’s other birth parent could not be located to consent to the adoption. It is not to be used if the other parent has been contacted but refused to give consent.
5. Final Judgment of Adoption (Form 56E) — This must be filled out and given to the judge at the final hearing.
6. Uniform Child Custody Jurisdiction Act Affidavit (Form 56) — This must be completed and filed with the petition and consents.
How do I complete these forms?
Read all of the forms carefully before filling in the blanks. If there is something you do not understand, have an attorney explain it to you. Every person who completes and signs a form should understand it. All of the blanks must be filled in. If someone helps you fill out the form, their name and address must be shown on the bottom of the form. If that person is not an attorney they must complete the form for nonlawyers who assist others in completing forms at the front of this book.
At the top of each form, fill in the judicial circuit number (the clerk’s office can give you this information) and the county where the petition will be filed. Leave the case number blank. Fill in the blank following “In the Matter of the Adoption of” with the full name by which the person being adopted will be known after the adoption.
Please note that a number of these forms must be signed under oath in the presence of a notary public. If the information you put on the form later is determined to be false, the adoption judgment may be overturned and you may be subject to penalties for perjury.
Specific instructions are provided before each of the forms. For more information see Chapter 63, Florida Statutes.
FORM 56A — PETITION FOR ADOPTION BY STEPPARENT
The adopting stepparent is the “Petitioner” on this form. All information required
See Appendix 5 and Chapter 63, Florida Statutes, for further information.
IN THE CIRCUIT COURT OF THE_JUDICIAL CIRCUIT, IN AND FOR_, COUNTY, FLORIDA
In the Matter of the Adoption of CASE NO: -
PETITION FOR ADOPTION _, BY STEPPARENT
Adoptee
Petitioner, _, Social Security No. _, files this petition for adoption of the above-named minor child, pursuant to Chapter 63, Florida Statutes, and states as grounds for it:
1.This is an action for adoption of a minor child by his/her stepparent,
2.I desire to adopt_, who was born on
[child’s current name]
_, at __
[date] [city, county, and state]
A copy of the birth certificate is attached. Further, I desire to adopt the minor child in that the child has resided in my care and custody since-and I now
[date]
wish to establish legally the parent/child relationship already existing between me and the child. Since that time I have adequately been able to provide for the material needs of the child and am able to continue to do so in the future, as well as to provide for the child’s mental and emotional well-being.
3. I am_years old and I currently live in_County, Florida. I have sufficient resources to provide for the child including the following [Employer’s name and address or other source of income]:I intend to remain a resident of Florida.
4. The birth father/mother of the child and I were married on_in
[date]
_ County, Florida.
5. The adoptee’s name shall be:_
6. A completed Uniform Child Custody Jurisdiction Affidavit is attached to this petition.
Approved for use under rule 10 — 1.1(b) of the Rules Regulating The Florida Bar
7.The adoptee’s birth parents are:
Father's Name Birthdate
Mother’s Name Birthdate
Address
8. Consent (mark all that apply):
_a. _, the birth mother/father of the child consents to this adoption.
The consent is attached to and made a part of this petition.
_b. The consent of the birth father should not be required because:
_ The minor child is not the birth father’s by virtue of a previous adoption.
_ The minor child has not been established by a court proceeding to be his child.
_ To my knowledge, the birth father has not acknowledged in writing, signed in the presence of competent witnesses, that he is the father of the minor child, nor has he filed such an acknowledgment with the Vital Statistics Office of the Department of Health and Rehabilitative Services.
_ The birth father has not provided the child with support in a repetitive and customary manner.
_c. The consent of the birth parent should be excused for the following reason:
_ The birth parent has deserted the child without providing a means of identification or has abandoned the child.
_ The birth parent’s rights have been terminated by a court order.
_ The birth parent has been declared incapacitated by a court and restoration of capacity is medically improbable.
_ The legal guardian or lawful custodian of the child, other than the birth parent, has failed to respond in writing to a request for consent for a period of 60 days or, after examination of his/her reasons for withholding consent the court has found them to be unreasonable.
_ The former spouse or birth parent’s consent is excused because of prolonged unexplained absence, unavailability, incapacity, or another circumstance constituting unreasonable withholding of consent.
_d. The written consent of the minor child,_, age_(if over 12 years), is attached and made a part of this petition.
_e. The nonresidential parent is dead.
9. The minor child has property in the approximate value of $_, described as follows:_
10. A copy of this petition for adoption has been sent to the local office of the Department of Health and Rehabilitative Services.
I am aware that the adoptive stepparent may be liable for child support in the event of a later divorce, and could be liable in litigation for the actions of the adoptee. The adoptee’s inheritance may also be affected.
WHEREFORE, I request that this court enter a Final Judgment of Adoption of the minor child by the Petitioner Stepparent, and change the name of the adoptee.
I DECLARE UNDER PENALTY OF PERJURY that the information in this petition is true and correct.
Petitioner
Name: _
Address: _
Telephone No.: _
[date]
NOTARY PUBLIC:
Signature: _
Print: _
State of Florida at Large My Commission Expires:
Personally known to me
Produced •_as identification.
[document]
This form was completed with the assistance of: Name:
Address:
Telephone Number:
FORM 56B — CONSENT AND WAIVER BY PARENT
This form is completed and signed by the birth parent to whom the adopting parent is not married. It must be signed in the presence of a notary public, who will also sign and seal it, and two witnesses other than the notary. The form is filed with the petition for adoption.
See Appendix 5 and Chapter 63, Florida Statutes, for more information.
IN THE CIRCUIT COURT OF CIRCUIT, IN AND FOR_ THE_JUDICIAL _, COUNTY, FLORIDA
In the Matter of the Adoption of CASE NO: _
Adoptee CONSENT AND WAIVER BY PARENT
Before me, personally appeared_, who is personally known to me/produced _as identification, and who, after first being duly, sworn states:
[document]
1. I,_, am the birth mother/father of the above-named child, who was born on_, at_ . I do hereby relinquish all rights to and custody of this minor child,_, and do consent to the adoption by the Petitioner,-, with full knowledge of the legal effect of the stepparent adoption.
2. I understand my legal rights as a parent and I understand that I do not have to sign this consent and release of my parental rights. I acknowledge that this consent is being given knowingly, freely, and voluntarily. I further acknowledge that my consent is not given under fraud or duress. I understand that there is no “grace period” in Florida during which I may revoke my consent. I understand that in signing this consent I am permanently and forever giving up all of my parental rights to and interest in this child. I voluntarily permanently relinquish all my parental rights to this child.
3. I understand that: “After 1 year from the entry of a judgment of adoption, any irregularity or procedural defect in the proceedings is cured, and the validity of the
4. I do now, of my own free will, consent and release and give up completely and permanently my parental rights to this child, for the purpose of adoption.
5. I waive any further notice of the adoption proceeding.
6. I have/have not been interviewed about this adoption pursuant to a preliminary home study.
Approved for use under rule 10-l.l(b) of the Rules Regulating The Florida Bar
I am aware that the adoptive stepparent may be liable for child support in the event of a later divorce, and could be liable in litigation for the actions of the adoptee. The adoptee’s inheritance may also be affected.
Signature
Name: _
Address: _
Telephone No.: _
SWORN TO AND SUBSCRIBED BEFORE ME on_
[date]
NOTARY PUBLIC:
Signature: _
Print: _
State of Florida at Large My Commission Expires: _
WITNESS: WITNESS:
Signature: _ Signature: _
Print: _ Print: _
Home/Business Address: Home/Business Address:
Social Security No.: Social Security No.:
This form was completed with the assistance of: Name:
Address:
Telephone Number:
FORM 56C — CONSENT TO ADOPTION BY ADOPTEE
This form must be completed and signed by the person being adopted, the adoptee, if he or she is over 12 years of age. It must be signed in the presence of a notary public, who will sign and seal it, and two witnesses other than the notary.
For more information see Appendix 5 and Chapter 63, Florida Statutes.
In the Matter of the Adoption of CASE NO: -
CONSENT TO ADOPTION _, BY ADOPTEE
Adoptee
Before me, personally appeared_, who is personally known to me/produced _as identification, and who, after first being duly, sworn states:
[document]
1. I, _, being _ years of age, do hereby consent to my adoption by _, to be his/her/their legal child and heir at law.
2. I hereby consent to being known as -, from now on.
I am aware that the adoptive stepparent may be liable for child support in the event of a later divorce, and could be liable in litigation for the actions of the adoptee. The adoptee’s inheritance may also be affected.
Signature
Name: -
Address: _
Telephone No.: _
SWORN TO AND SUBSCRIBED BEFORE ME on_
[date]
NOTARY PUBLIC:
Signature: _
Print: _
State of Florida at Large My Commission Expires:
WITNESS: WITNESS:
Signature: _ Signature: _
Print: _ Print: _
Home/Business Address: Home/Business Address:
Social Security No.: Social Security No.:
Approved for use under rule 10 — 1.1(b) of the Rules Regulating The Florida Bar
This form was completed with the assistance of: Name:
Address:
Telephone Number:
FORM 56D — AFFIDAVIT OF DILIGENT SEARCH
This form is to be used if the birth parent who is not married to the stepparent adopting the child could not be located to give consent. It is not to be used if the birth parent was located and refused to agree to the adoption. The birth parent who is married to the adopting stepparent completes this form showing what efforts
For more information see Appendix 5 and Chapter 63, Florida Statutes,
IN THE CIRCUIT COURT OF THE_JUDICIAL CIRCUIT, IN AND FOR_, COUNTY, FLORIDA
In the Matter of the Adoption of CASE NO: -
AFFIDAVIT OF DILIGENT __ SEARCH
Adoptee
Before me, personally appeared_, who is personally known to me/produced _as identification, and who, after first being duly, sworn states:
[document]
1. I am married to the child’s birth parent.
2. The birth father’s/mother’s last known address was-
_and his/her last known address of employment was-
_, as of-
3. The birth father/mother is over the age of 18.
4. The birth father/mother is not a member of the Armed Forces of the United States or the U.S. Public Health Service, within the meaning of the Soldiers and Sailors Civil Relief Act, as amended.
5. The birth father’s/mother’s address or location is not known and cannot be determined, although I have made a reasonable effort to locate him/her: (Describe efforts and when made below):
_ Contacted his/her family: -
Contacted his/her employer:
Contacted his/her friends:
Contacted his/her last known address:
Sent letters to his/her last known address:
Approved for use under rule 10-l.l(b) of the Rules Regulating The Florida Bar
_ Sent letters to the Armed Forces on_who responded-
_ Other: -------— I declare under penalty of perjury that I have read this document and that the contents are true and correct.
Signature
Name: -
Address: -
Telephone No.: -
SWORN TO AND SUBSCRIBED BEFORE ME on_
[date]
Signature: _
Print: _
State of Florida at Large My Commission Expires:
Personally known to me
Produced .... as identification.
[document]
This form was completed with the assistance of: Name:
Address:
Telephone Number:
FORM 56E — FINAL JUDGMENT OF ADOPTION
Before you go to court for the final hearing on the adoption, you should complete items 1 through 9 on this form. Leave the remainder of the form blank for the judge to complete if the adoption is granted. Take this form with you to court to give it to the judge.
For more information, see Appendix 5 and Chapter 63, Florida Statutes.
IN THE CIRCUIT COURT OF THE_JUDICIAL CIRCUIT, IN AND FOR_, COUNTY, FLORIDA
In the Matter of the Adoption of CASE NO: _
FINAL JUDGMENT _, OF ADOPTION
Adoptee
This matter was heard for consideration by the court on the Petition for Stepparent Adoption filed in this action, and having heard testimony and considered the evidence, THE COURT FINDS THAT:
1. It has jurisdiction over the subject matter of the petition for adoption.
2. It has jurisdiction over the minor child, _, the petitioner, _, and the birth parent, _, in that they are residents of _County, State of Florida. Further, the child and petitioners have significant connections with the State of Florida.
3. There is no pending litigation regarding this child in the State of Florida or any other state, nor is there any other person not a party to these proceedings who has, or claims to have, physical custody or visitation rights to the minor child.
4. The best interests of this child would be served and promoted by this adoption and the petitioner desires the permanent responsibility of a parent in this adoption.
5. Consent of the birth parent is:
___ Attached
_Waived because:
___ the parent has deserted the child without affording a means of identification.
the parent has been judicially declared incapacitated and restoration of capacity is medically improbable.
Approved for use under rule 10-l.l(b) of the Rules Regulating The Florida Bar
_ the legal guardian or lawful custodian of the adoptee, other than the parent, has failed to respond in writing to a request for consent for 60 days, or the court has examined the written reasons for withholding consent and has found the withholding of consent to be unreasonable.
_ Other:-
_Not required because he/she is deceased.
6. The petitioner stepparent is a fit and proper person to adopt the minor child and the best interests of the child will be promoted by this adoption.
7. The minor child is suitable for adoption by the petitioner.
NOW, THEREFORE, IT IS ORDERED that:
8. The minor child presently known as_is declared to be the legal child of petitioner,_, and is given the name of_, by which he/she shall hereafter be known.
9. This minor child shall be the child and legal heir of law of the petitioner, _, and shall be entitled to all rights and privileges, and subject to all obligations of children born of petitioner.
10. All legal relations between the adoptee and the birth mother/father and between the adoptee and the relatives of the birth parent are hereby terminated by this adoption, as are all parental rights and responsibilities of the birth parent.
11. This Final Judgment of Adoption creates a relationship between the adoptee and the petitioner and all relatives of petitioner that would have existed if the adoptee were a blood decedent of the petitioner, born within wedlock, entitled to all rights and privileges thereof, and subject to all obligations of a child being born to petitioner.
ORDERED on_, at_, County, Florida.
Circuit Judge
Copies to:
This form was completed with the assistance of: Name:
Address:
Telephone Number:
FORM 56F — PETITION FOR ADOPTION INFORMATION AND ORDER RELEASING ADOPTION INFORMATION
This form is used to request release of information on an adoption. It should be filed with the clerk of the circuit court.
For more information, see Appendix 5 and Chapter 63, Florida Statutes.
IN THE CIRCUIT COURT OF THE_JUDICIAL CIRCUIT, IN AND FOR_, COUNTY, FLORIDA
PETITION FOR ADOPTION INFORMATION AND ORDER _, RELEASING INFORMATION
Adoptee
1. I, _, am interested in this matter as:
_ adult adoptee (over 18)
_ adoptive parent
_ adult birth sibling
_ other: -
2. The adoptee was born on_
3. I request nonidentifying information as to family medical history and social history of the adoptee as follows:
_ If available, to be furnished to adoptive parents before finalization of the adoption.
_ If available, to be furnished to adoptee upon request after adoptee reaches majority.
4. The reason I am requesting disclosure of this information is _
Approved for use under rule 10-l.l(b) of the Rules Regulating The Florida Bar
I declare that I have read this petition and it is true and correct.
Signature
Name: _
Address: _
Telephone No.: _
SWORN TO AND SUBSCRIBED BEFORE ME on_
[date]
NOTARY PUBLIC:
Signature: _
Print: _
State of Florida at Large My Commission Expires:
Personally known to me
Produced_as as identification.
[document]
ORDER
IT IS ORDERED
_ 1. The petitioner shall receive
_ Nonidentifying information as to: _
_ Identifying information as to: _
_ All records relating to the adoption proceedings.
_ 2. The petition is denied in whole or part because:
This form was completed with the assistance of: Name:
Address:
Telephone Number:
. These forms are directed to the prospective adoptive stepparent, the birth parent to whom the adopting parent is not married, and the adoptee, respectively.
. Ch. 92-96, § 7, Laws of Fla.
