There are several types of adoptions under Louisiana law. Our law recognizes agency adoptions,1  private adoptions,2  intrafamily adoptions,3  international adoptions,4  and adult adoptions.5  The laws governing adoptions differ depending on the type of adoption. Insofar as most adoptions handled by legal services attorneys are usually intrafamily adoptions, this manual will concentrate on these types of adoptions.

Louisiana courts have long held that “laws providing for adoption must be given a strict construction as they are in derogation of the natural right of a parent to his child.”6  This strict construction leads to two significant problems with most adoptions filed with our courts. First, attorneys fail to provide the type of notice to parents required by law within the time frames required by law. Second, attorneys fail to submit the necessary pleadings in proper form with content conforming to our adoption laws.

• 1See La. Ch.C. arts. 1198–1220.
• 2See La. Ch.C. arts. 1221–1242.
• 3See La. Ch.C. arts. 1243–1257.
• 4See La. Ch.C. arts. 1281.1–1285.17.
• 5La. C.C. art. 212.
• 6In re Ackenhausen, 154 So. 2d 380, 383 (La. 1963) (citing Green v. Paul, 31 So. 2d 819 (La. 1947)).

A court exercising juvenile jurisdiction has exclusive original jurisdiction in adoption proceedings pursuant to Titles XI (surrender of parental rights for purposes of adoption) or XII (agency, private, and intrafamily adoption) of the Louisiana Children’s Code.1  In Caddo, East Baton Rouge, Jefferson, and Orleans Parishes, the juvenile court has exclusive jurisdiction.2  In all other parishes, district, parish, and city courts have exclusive original jurisdiction, which is concurrent when their territories overlap.3

• 1See La. Ch.C. art. 303(7).
• 2La. Ch.C. art. 302(1).
• 3La. Ch.C. art. 302(2)–(4).

There has been a clear trend to broaden the category of relatives who may seek an intrafamily adoption. Under La. Ch.C. art. 1243, the following persons may petition for an intrafamily adoption:

A. A stepparent, stepgrandparent, great-grandparent, grandparent, or collaterals within the twelfth degree may petition to adopt a child if all of the following elements are met:

1. The petitioner is related to the child by blood, adoption, or affinity through the mother of the child or through a father who is filiated to the child in accordance with the Civil Code.
2. The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner.
3. The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.

B.

1. When the spouse of the stepparent or one joint petitioner dies after the petition has been filed, the adoption proceedings may continue as though the survivor was a single original petitioner.
2. When a petitioner is the grandparent of a child and the petitioner’s spouse is the stepgrandparent of the child and that spouse files an authentic act requesting that the blood relative grandparent petitioner be allowed to file or complete the adoption proceedings as the sole petitioner, then any court of competent jurisdiction may grant the adoption in the same manner as if the grandparent was a single petitioner. Any petitioner and stepgrandparent filing a petition pursuant to this Paragraph shall be required to undergo the background check provided for in Article 1243.2.

Once a petitioner files for adoption, the court must immediately issue two orders:

(1) That the local sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, conduct a records check for all federal arrests and convictions and all state arrests and convictions for each of the prospective adoptive parents. Prospective adoptive parents shall submit a set of fingerprints to the sheriff or the office of state police.

(2) That the department conduct a records check for validated complaints of child abuse or neglect in this or any other state in which either of the prospective adoptive parents has been domiciled since becoming a major, involving either prospective adoptive parent.1

These orders must be accorded priority, and the responding agency must “provide a certificate indicating all information discovered, or that no information has been found.”2

• 1La. Ch.C. art. 1243.2(A).
• 2La. Ch.C. art. 1243.2(C).

In general, parents must consent to the adoption of their child.1  A parent can execute an authentic act consenting to the adoption of his or her child in an intrafamily adoption.2  In the case of adoption by a petitioner married to the parent, the parent must join in the petition if the child was born outside of marriage.3  But, if the child was born of marriage, the parent married to the stepparent petitioner may consent by authentic act.4

However, consent is not required if the following can be proven by clear and convincing evidence:

B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:

1. The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
2. The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:

1. The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
2. The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.5

Be wary of a client who states that because no father is listed on the birth certificate, she does not know who the father is. It may take some “prodding” and an explanation of the inherent problems of due process before you get a name(s). It is always a safer practice to have a curator appointed when the biological father’s identity is known, but his whereabouts are unknown.6

• 1See La. Ch.C. art. 1193.
• 2La. Ch.C. art. 1244(A).
• 3La. Ch.C. art. 1244(C).
• 4La. Ch.C. art. 1244(B).
• 5La. Ch.C. art. 1245.
• 6See La. Ch.C. art. 1250. For further discussion of curator proceedings in the divorce context, see Section 3.9.2.

La. Ch.C. art. 1247, which references La. Ch.C. arts. 1133, 1134, 1136–1143, sets forth the requirements for service on parents and includes specific text that must be included in the notice. Only if the noticed person files an answer in opposition of the adoption will that person have an opportunity to oppose the adoption in court.1  Note that different notices should be provided to an alleged father (where there is no formal acknowledgment, legitimation, filiation order, or presumption of paternity) versus an adjudicated legitimate father.2

Read carefully and comply with the provisions of Article 1247 to the letter. Even if one parent has signed an Act of Consent to Adoption, the other parent must be served with a Notice of the Filing of Petition of Adoption along with a copy of that petition, unless service has been waived.3  All Social Security Numbers contained within the petition or its exhibits should be redacted from copies sent to the person(s) served with notice.4

La. Ch.C. arts. 1248–1249 provide specific methods and time frames for service on resident and nonresident parents. The attorney for the adoptive parent must serve, either personally or domiciliary, on a resident parent no later than 30 days prior to the hearing on the adoption petition.5  Service on a nonresident parent must be by registered mail return receipt requested, postage prepaid, or by commercial carrier as defined in R.S. 13:3204(D), at the address listed in the petition, not less than 30 days prior to the hearing on the adoption petition.6

La. Ch.C. art. 1250 provides for the appointment of a curator ad hoc upon whom service shall be made if service cannot be made on the parent under Articles 1248 or 1249.7

• 1La. Ch.C. art. 1247(A).
• 2La. Ch.C. art. 1247(B).
• 3La. Ch.C. art. 1247(A).
• 4See La. Ch.C. art. 1248(B), 1249(B). Although the Children’s Code only permits but does not require redaction of social security numbers, it is nevertheless a good practice that attorneys should follow.
• 5La. Ch.C. art. 1248(A).
• 6La. C.C. art. 1249(A).
• 7See also La. Ch.C. art. 1251 (identifying the curator’s duties). For further discussion of curator proceedings in the divorce context, see Section 3.9.2.

Intervention in the proceedings may be by motion and a showing of good cause and is limited to persons having a substantial caretaking relationship with the child for 1 year or longer, or any other person that the court finds to be a “party in interest.”1  In the latter case, the intervenor’s role is limited to presenting evidence as to the best interests of the child.2

• 1La. Ch.C. art. 1254(A)–(B).
• 2La. Ch.C. art. 1254(C).

DCFS may not conduct a home study for intrafamily adoptions unless ordered by the court.1  Nevertheless, most courts will want a home study. Check with DCFS prior to your hearing date to ensure that the home study was completed.

• 1La. Ch.C. art. 1252.

There are specific time frames for the setting of the hearing on an adoption petition.1  Thus, it is helpful to the clerk and the court if your order complies with these time frames. The court must hear the petition within 60 days if there is no opposition or within 90 days if there is opposition.2  This time may be extended up to 60 days for good cause or reduced to a minimum of 15 days with written approval of DCFS and the petitioner.3

La. Ch.C. art. 1253 requires that the court consider specific facts and evidence:       

1. Any motion to intervene which has been filed.
2. Any other issues in dispute.
3. The confidential report of the department, if any.
4. The report of any criminal records concerning the petitioner, including the nature of the offenses, the number of offenses, and the length of time between the offenses and between the last offense committed and the petition for intrafamily adoption. The existence of a criminal record of the petitioner shall not be automatic grounds for the court to refuse to grant an intrafamily adoption.
5. The report of any validated complaints of child abuse or neglect concerning the petitioner.
6. The testimony of the parties.4

Remember to bring the child or children to court with you. If the child is 12 years of age or older, the court must solicit and consider the child’s wishes regarding the adoption.5  However, even when the children are younger, most judges like the children present. You may also want to bring a camera to memorialize the occasion for the family.6  Of all the good work family law attorneys do in court, this may be one of the most fulfilling moments in court for everyone.

After the adoption hearing, the court may enter a final decree of adoption or it may deny the adoption.7  The “basic consideration” is the child’s best interest.8  In cases in which either the child’s grandparents or a parent married to a stepparent petitioner has already been granted custody, there is a rebuttable presumption that the adoption is in the child’s best interest.9

• 1La. Ch.C. art. 1253(A).
• 2Id.
• 3Id.
• 4La. Ch.C. art. 1253(B).
• 5La. Ch.C. art. 1253(C).
• 6Be sure to remind the family that the court may not allow nonattorneys to bring in a camera or cell phone.
• 7La. Ch.C. art. 1255(B).
• 8Id.
• 9La. Ch.C. art. 1255.

A child who is of Native American ancestry may be subject to the Indian Child Welfare Act (ICWA) and not subject to state court jurisdiction.1  Because ICWA can be complex and the consequences of a placement made in violation of ICWA severe for children and families, it is always a good practice to inquire whether a child is of Native American ancestry before filing an adoption petition.

• 1For further discussion, see Indian Child Welfare Act (ICWA), Bureau of Indian Affairs.

In re R.E.1  – Sets out the notice requirements for natural fathers consistent with due process; discusses the burden of proof on natural fathers to affirmatively show efforts to preserve his opportunity to establish his parental rights; confirms that state must prove by clear and convincing evidence its allegations if seeking to terminate parental rights.

In re Miller2  – Statutory presumption that stepparent adoption in the best interest of the child did not apply where natural father had joint custody.

In re Bordelon3  – Adoption of child over incarcerated mother’s objections.

Leger v. Coccaro4  – Court held that adoption by stepfather was not in the child’s best interest. This appears to be a “bad” case where the appellate court engages in speculation about the mother’s current marriage and problems that may arise in that marriage. The appellate court noted the father’s failure to provide financially for the child, and curiously, seemed to be influenced more by the concern shown by the paternal relatives as opposed to the interest exhibited by the father.

Anderson v. Ramer5  – Concluded that father had failed to provide “significant” child support insofar as he was in arrears for about $10,000, exclusive of interest, at the time the adoption petition was filed.

Myers v. Myrick6  – La. Ch.C. art. 1245 allows adoption without a parent’s consent in certain circumstances where the parent has “refused or failed to visit, communicate, or attempt to communicate with the child.” Although Hayes v. Mangham had held that compliance with support obligations must be “significant” in order to render La. Ch.C. art. 1245 inapplicable,7 the Second Circuit declined to extend that reasoning to visits and communication.

German v. Galley8  – Concluded that father’s payment of 21% of the child support owed in previous year was significant enough to prevent application of statute allowing for adoption of child without parental consent.

In re G.E.T.9  – Grandparents sought to adopt. Court found that the grandparents failed to prove that natural parents presented a risk of physical or psychological harm to the child and failed to meet their burden of proving the adoption was in the best interest of the child.

Tutorship of Shea10  – Grandparent adoption permitted where grandparents were awarded the sole custody of the child in tutorship proceedings, and father’s consent not needed as he failed to provide significant support for 1 year.

W.P.H. for Adoption of A.A.B.11  – Due to severity of terminating the parent-child relationship, intrafamily adoption statutes are strictly construed in favor of the biological parent and against the stepparent seeking to adopt.  

• 194-CK-2657, 94-CK-2596, 94-CK-2663 (La. 11/9/94), 645 So. 2d 205.
• 295 CA 1051, 95 CA 1052 (La. App. 1 Cir. 12/15/95), 665 So. 2d 774.
• 395-1194 (La. App. 3 Cir. 3/6/96), 670 So. 2d 67.
• 498-202 (La. App. 3 Cir. 4/29/98), 714 So. 2d. 770.
• 527,469 (La. App. 2 Cir. 9/27/95), 661 So. 2d 584.
• 634,970 (La. App. 2 Cir. 5/17/01), 787 So. 2d 546.
• 7375 So. 2d 103 (La. 1979).
• 898-197 (La. App. 3 Cir. 7/17/98), 712 So. 2d 1034.
• 9529 So. 2d 524 (La. App. 1 Cir. 1988).
• 10619 So. 2d 1236 (La. App. 3 Cir. 1993).
• 112022-141 (La. App. 3 Cir. 10/12/22), 349 So. 3d 1120.