LEGAL CORNER: Can you adopt a child without involving the biological parents?

Published: May. 31, 2023 at 12:37 PM CDT
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Lake Charles, LA (KPLC) - Legal Corner answers viewers’ civil legal questions.

QUESTION: We have had legal custody of our grandson since he was 6 months old. He is now 11. Neither of his biological parents has much interest in him, nor has either offered any financial support. Is there any way to adopt him without the biological parents being involved? Would they both have to agree on the adoption? We are not even sure where the mother is.

ANSWER: Intrafamily adoption is an adoption process that allows relatives to adopt relatives. Louisiana’s Intrafamily Adoption laws allow a stepparent, grandparent, great-grandparent, step-grandparent, or relative to the twelfth degree (first cousins, once removed) to adopt a child if all of the following are met:

  1. The person seeking to adopt is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights.
  2. The person seeking to adopt is a single person over the age of 18, or a married person whose spouse is a joint petitioner.
  3. The person seeking to adopt has had legal or physical custody of the child for at least six months prior to the filing of the petition.

Louisiana law provides that consent is not required, providing there is clear and convincing evidence of the following:

  • A. 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.

The family court judge has to ensure the adoption is in the child’s best interests. The family court will review numerous factors usually with the help of a lawyer appointed by the court. In Louisiana, that lawyer is known as a curator ad hoc.

These factors reviewed include:

  • Examining the home environment
  • Speaking with the family members including the person being adopted
  • Examining how close the child and the non-custodial natural parent (if alive) and how terminating this relationship would affect that relationship

According to Louisiana Code of Civil Procedure article 5091.2, the judge of the competent court is authorized to appoint an attorney who shall serve as curator ad hoc who will assist the court in complying with the statutory requirements for maintaining the confidentiality of termination, surrender, adoption, and related records and proceedings.

If the current whereabouts of either parent are unknown, then the court can appoint a curator ad hoc to try to find the parent so he or she can be properly served with the adoption petition.

The termination of parental rights is a very serious matter and should be considered carefully and fully. A parent will not simply lose custody; he or she will give up all rights to that child.

QUESTION: We moved into a home that was advertised as not having an HOA. Turns out, the HOA’s articles of incorporation were revoked over 22 years ago. What’s worse, the “President” didn’t realize it and they’ve been collecting dues the whole time. Furthermore, their Covenants are over 40 years old and have never been updated. I believe they have a statute of 30 years. Now they’ve managed to get back in good standing with their non-profit status as an HOA, but I’m not sure how.

My question is, at what point is an HOA considered “dead” and can they even enforce covenants that are so old? I feel like we have experienced a bait-and-switch marketing experience considering we bought a house that was not attached to an HOA.

ANSWER: Every Louisiana homeowners’ association (HOA) must abide by its governing documents as well as state laws.

Homeowners’ associations in Louisiana must be organized as either a nonprofit corporation, an unincorporated association, or other legal entity created by the declaration (La. R.S. 9:1141.2(5)) and are therefore subject to the Business Corporations Act.

Under La.R.S. 12:262.1, a corporation shall not be revoked if the corporation places itself in good standing. Additionally, subsection E(1) states: “The certificate of incorporation and articles of incorporation shall be reinstated upon the filing, with the secretary of state and within three years from the effective date of the revocation, of an application of reinstatement, signed and acknowledged by an officer of the corporation, accompanied by a reinstatement fee and a current annual report.

What Happens When Covenants Expire?

Once the HOA covenants expire, the board effectively becomes powerless. This means that the HOA cannot enforce the collection of assessments and fees, cannot enforce architectural standards, and cannot regulate the use of common areas and common facilities.

Without the ability to collect assessments and fees, the HOA board is unable to operate and properly maintain the community. The negative repercussions for an HOA that cannot enforce covenants are devastating for the property values of the homes within the community; the whole community will suffer.

If restrictive covenants expire, all of the property owners will have to vote to reinstate them. Restrictive covenants are contracts, and therefore, when the restrictive covenants have expired, all parties must agree to them again. If this occurs, it will be as if the covenants had never expired.