In the matter of THE ADOPTION OF G.L.V. AND M.J.V. 190 P.3d 245 (2008) CASE BRIEF

In the matter of THE ADOPTION OF G.L.V. AND M.J.V.

190 P.3d 245 (2008)

NATURE OF THE CASE: This was an appeal by a Stepfather (SF) from the denial of a stepparent adoption. The Court of Appeals affirmed the district court's decision, holding that the natural father's consent was necessary since he had performed his parental duties during the 2 years preceding the adoption petition.

FACTS: Twin brothers were born on October 17, 1994. Their parents were never married and lived together only briefly prior to the time that the boys were born. In 1995, the mother filed a paternity action, resulting in a determination that the father (F) was the natural father of the twins, and an order was issued requiring F to pay child support. Three weeks after their birth, F left the area and did not return until 1997. F filed an action to secure visitation rights to the twins and was awarded weekend visitation; however, he exercised his visitation rights only two or three times. In these proceedings, F testified he sought aid to enforce visitation from the sheriff but was advised his only remedy would be through court proceedings and because he did not have funds to hire a lawyer, he did not pursue enforcement of his visitation rights. The paternal grandparents and other members of F's family have maintained a relationship with the twins. Child support payments were infrequent, leading to a significant arrearage. Since April 2003, F has been regularly employed and has consistently made monthly child support payments of $366 through an income withholding order. From April 2003 until June 2006, he paid $21,003.86 in child support on an obligation of $14,274, with the overage applied toward the arrearage. F is currently married and has three children by that marriage and one stepchild. Mother (M) married SF in 2004. SF filed a petition to adopt the twins without obtaining the consent of F. The district court held an evidentiary hearing on August 29, 2006. M testified that she had never prevented F from visiting the children and that SF was the only 'father figure' that her children had ever known. SF regularly helps G.L.V. and M.J.V. with their homework and is actively involved in their sports events and scouting program. SF did not testify at the hearing. The court denied the adoption. The court found the best interests of the child did not clearly favor one parent over the other. A divided panel of the Court of Appeals affirmed, concluding that the 2006 amendment did not abrogate the parental duties test (based on the two-sided ledger) even though it granted a district court discretionary authority to consider the best interests of the child and the fitness of the nonconsenting parent. SF appealed. SF contends that the best interests of children involved in a contested stepparent adoption is an overriding factor in the determination; or, alternatively, the two-sided ledger standard of love and affection and financial support has been converted to a three-column ledger with the best interests of the child being entitled to equal weight and consideration in the stepparent adoption proceedings.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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