How would a custody senario like this work out in real life?

I’m in the middle of writing a short story, but since it’s fiction, the scenario will play out how I want it to :slight_smile:

But I’m curious, suppose this happened in real life:
Due to a set of unfortunate circumstances, a couple puts their infant son up for adoption. Things improve for them, but they don’t try to get their son back because he’s happy. The adoptive parents sense this and name the birth parents his guardians in their will… and unfortunately they die in an accident a couple years later. The couple had also adopted an orphaned teenage boy. There is no other family left to take the older boy since both adoptive parents have no living relatives (nor does the older boy have any living blood relatives).

Suppose after the accident the birth parents wanted both kids, how hard would it be for them to get the older one? Would a judge be likely that someone wanted to keep kids raised together together, especially considering the older one isn’t especially “adoptable” at his age? Or would it be just as hard as adopting any other child?

Lawyer here, used to practice family law.

First, the birth parents would not even have the option of trying to get their bioson back after the adoption went through legally. All their parental rights would have been severed. They might try to seek out a relationship with the child, but the adoptive parents would have the option to refuse. What you probably have in mind are the cases like Baby Jessica, where a child went back to bio parents after an adoption. In those cases, the adoptions were not done properly.

If the adoptive parents named the bio parents in their will as the guardian of their child, the bio parents would get the kid, and they could try to adopt him so that they would have full parental rights again. The adoptive parents’ relatives might try to fight this, trying to get custody or even adopt the child themselves. Those situations have a decidedly mixed result in the real world. The standard is, “what is in the best interests of the child?” Different judges will have different opinions, and all cases are different. The outcome would depend greatly on the relative circumstances of the bio parents and the adoptive parents’ relatives.

Factors that might be considered:

  1. How old are the relatives seeking to adopt? If they are elderly, this may be a concern.

  2. The health of the parties concerned.

  3. The home life the parties could provide.
    a. If someone could provide a stay-at-home parent, that would look good to many judges.
    b. Money comes into it, though usually only to the extent of being able to provide a comfortable life–wealthy v. middle class is usually not going to be a determining factor.

  4. Previous child abuse allegations, criminal record, etc.

  5. How willing the parties are to maintain good family relations with the family the child already knows. If the bio parents would maintain contacts with the child’s adoptive relatives, big score in their favor. If the adoptive parents’ relatives would cut the bio parents out (if they had a relationship with the child), big negative against them.

  6. If the bio parents would raise the child in the same religion the adoptive parents did, usually this is a good point for them in an adoption.

  7. Child’s preference (if old enough to say; usually this starts around age 7).

  8. Who did the adoptive parents pick as guardian? That they picked the bio parents is a big point in their favor.

Those would be the biggies.

Now, if the adoption is uncontested, there would almost certainly be no issue that the bio parents could adopt their bio kid if they were not unfit. The adoptive parents picked them as guardians. That’s usually good enough. Also, if the bio parents adopted before, they’re almost certainly fit to adopt again.

Also, when parents write their wills, they often specify that their money should be placed in trust for their child, so their guardian can use it to raise their child. Frequently, the guardians are named the trustees, which gives them some significant power. Even if the adoptive parents’ relatives got the child, it would not affect the trust arrangement. Bio parents would have involvement at least in the financial portion of affairs.


Depends on how old the teenager is and what he has to say about it. I am having some trouble with the notion that the parents would go to the trouble of naming a guardian for the one child but not the other – unless the older child were above the age of majority, or the will had been made after the adoption of one but before the adoption of the other or something similar this suggests a certain callousness on the part of the parents.

Since neither the a-parents nor the older child have any living relatives to contest, I would say that anybody who wanted to become the childrens’ guardian other than the State would be likely to get the nod from the judge. The possibility of keeping kids raised as sibs together following the death of their parents, where there are no other relatives, would make this one pretty much a lock in the absence of evidence that the b-parents were actually running a child prostitution ring or something similarly dire.

But this would be based upon their willingness and the stated desire of the a-parents, not on their status as b-parents. Their status as b-parents is a cipher for the court.

Becoming the guardian of a child is not the same as adopting them. These children would then be their wards, not their children. If they wanted to adopt the children, they would have to go through the whole adoption process separately.

Nitpicking here, on what was otherwise an excellent and informative post. At least in my state, you can’t will a kid to anybody. A will can’t set up a guardianship…though it can establish a trust fund and designate a trustee.

A guardianship is a separate legal proceeding. The will would be admissable as evidence of what the former adoptive parents intended, and perhaps as a character reference for the prospective guardians If the guardianship is uncontested, yes, the bio parents would likely get the kid…if contested, all bets are off. The Court would then turn to the “best interest of the child” considerations, and it could go either way depending on evidence…

I misunderstood some of the OP. I thought the bio parents were the ones who adopted the orphaned teenage runaway kid. I also missed some of it because I ran off halfway through a paragraph to write my reply. Duh, and sorry.

Okay, if the adoptive parents don’t have relatives, and the bio parents are going to get guardianship of bio kid–it’s really, really likely that they would be allowed to adopt the teenager too, since they want to, and they will have his (adoptive) brother. The state likes to keep siblings together if possible. They also prefer not to send a kid into foster care if there is a perfectly good set of parents who wants to adopt him. If the teenager objected, I’m not sure what would happen. I’ve never heard of such a case.

I practiced family law in Minnesota, and guardianship was named in a will. I guess it’s different in other states, which I did not know. You may have to research the issue if you want to get that detailed.

By law, you’re right. But family court judges have their biases, and there are lots out there who would consider it a big plus that the prospective adopters were actually the bio parents of one of the prospective adoptees. It would very likely be a big (and unacknowledged) factor.

Huh. Interesting…and more efficient than the way we do things in my state. Still wouldn’t wanna practice up there though. Bet it’s almost impossible to get grits for breakfast…

I guess it depends on the circumstances surrounding the adoption – there are circumstances where the termination of parental rights is a very big plus for the children. So I think they could just as easily be placed under a higher, also unacknowledged, burden to show fitness.

Incidentally, where I come from, guardianship is also a separate proceding with the nomination in the will as mere evidence, but it is pretty red hot evidence in the situation described above, where no contest is likely – it’s a work of fiction in which the author has been at some pains to cut these kids off from any interested family.

I just cut to the chase because the OP said s/he was writing a short story which, unless it’s slated for publication in *Family Lawyer * or expected to appear as a fact pattern on the bar exam is unlikely to dwell for long on procedure. :slight_smile:

Of course. I meant, given the facts the OP stated–which apparently include the fitness of the bio parents as prospective adoptive parents.