CONSENT TO ADOPTION
Who must consent: In every state, the birth mother and birth father (if he has established paternity) must consent to an adoption. Either one or both parents may have these rights terminated for an assortment of reasons, including abandonment, failure to support the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect.
When neither birth parent is available to consent, the responsibility may fall into any of the following groups:
- An agency which has custody of the child
- Any person who has been given custody of the child
- A guardian or guardian ad litem
- The court having jurisdiction over the child
- A close relative of the child
- A "next friend" of the child, who is a responsible adult appointed by the court
Consent of Minors: Nearly all States, the District of Columbia, and the U.S. Territories require that older children give consent to their adoption. Approximately 24 States, the District of Columbia, and the Virgin Islands set the age of consent at 14 years. 18 States,American Samoa, and Guam allow consent at 12 years. 7 States,the Northern Mariana Islands, and Puerto Rico require consent of children age 10 years and above. In some States, the requirement can be dispensed with if the child lacks the mental capacity to consent,or the court finds it in the best interest of the child to dispense with consent. Colorado requires that the child be provided with counseling prior to giving consent.
When Consent Can be Given: 15 States and the Northern Mariana Islands allow birth parents to consent at any time after the birth of the child, while 29 States require a waiting period before consent can be given. Approximately 12 States and the Northern Mariana Islands allow an alleged birth father to execute consent at anytime before or after the child's birth.
The shortest waiting periods are 12 and 24 hours and the longest are 10 and 15 days. The most common waiting period, required in 14 States and the District of Columbia, is 72 hours (3 days). Only 2 States (Alabama and Hawaii) allow the birth mother to consent to the adoption before the birth of the child. However, the decision to consent must be reaffirmed after the child's birth.
How Consent Can be Given: This varies from state to state. In many states, the District of Columbia, and the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands, consent may be given by a written statement witnessed and/or notarized by a notary public. Other states may require an appearance before a judge or the filing of a petition of relinquishment. Some states require that the parent be provided with counseling,( have his or her rights and the legal effect of relinquishment explained to him or her, or be provided with legal counsel before giving consent. In cases in which custody has previously been placed with an agency, the head of the agency may sign an affidavit of consent.
In some states, a birth parent who is a minor must be provided with separate counsel prior to giving consent, or a guardian ad litem must be appointed to either review or execute the consent. In 6 states, Guam, and Puerto Rico, the consent of the minor's parents must be obtained as well.
Revoking Consent: The right of a birth parent to revoke consent is extremely limited. Mississippi, Nebraska, American Samoa, and the Virgin Islands make no provisions in statute for revocation of consent, and Massachusetts and Utah specifically require that all consents are irrevocable. In most States, the law provides that consent may be revoked before the entry of the final adoption decree under specific circumstances or within specified time limits.
The circumstances under which withdrawal of consent may be permitted by a State can include:
- Consent was obtained by fraud, duress, or coercion.
- The birth parent is allowed to withdraw consent within a specified period of time, after which consent becomes irrevocable.
- The birth parent is allowed to withdraw consent within a specified period of time, after which consent becomes irrevocable unless there is evidence of fraud or duress.
- The birth parent is allowed to withdraw consent within a specified period of time, after which consent becomes irrevocable unless it can be shown that revocation is in the best interests of child.
- There is a finding that withdrawal of consent is in the best interests of the child.
- The birth parents and adoptive parents mutually agree to the withdrawal of consent.
- An adoptive placement is not finalized with a specific family or within a specified period of time.
PARTIES TO AN ADOPTION
Who May be Adopted:
A child may be adopted if he or she meets any of the following criteria:
- A child surrendered for adoption to an agency which has consented to adoption.
- A child to whose adoption a person authorized by law has consented or where no consent is required.
- A child in the custody of someone intending to adopt him or her through placement by his or her parents.
An adult may be adopted if he or she has lived in the home of the person(s) intending to adopt him or her for more than two consecutive years. This can happen at any time before the beginning of the adoption proceeding. The time requirement is NOT required if the adult to be adopted is a blood relative of the adoptive parent(s).
Who May Place a Child for Adoption: Any person or entity who has the right of consent to a child may place that child for adoption. This includes the birth parents or the child's legal guardian or guardian ad litem. Legal entities include State Departments of Social Services or child placing agencies. Roughly 37 States, the District of Columbia and America Samoa specifically designate which person or entities hold the authority to make adoptive placements.
Constitutional Rights: The U.S. Supreme Court has protected a putative father's right to constitutional protection of his parental rights when he has established a substantial relationship with his child. A substantial relationship is defined as the existence of a biological link between the child and putative father, and the father's commitment to the responsibilities of parenthood by participating in the child's upbringing.
Putative Father Registries: In almost all jurisdictions, putative fathers are entitled to a notice of the proceedings to terminate parental rights or adoption proceedings. States generally require a putative father to register on the putative father registry or acknowledge paternity within a certain time frame in order to receive notice of such proceedings. Approximately 21 States have statutes authorizing the establishment of putative father registries. However, several states only mandate by law that a putative father file a notice of his paternity claim within a certain period of time. Failure to register or file may preclude the right to notice of termination or adoption proceedings.
Information Included in Registries:
- Name, address, social security number and date of birth of putative father and birth mother
- Name and address of any person adjudicated by a court to be the father
-Child's name and date of birth or expected month and year of birth
- Registration date
- Other information deemed necessary
Revocation: Approximately 15 States allow putative fathers to revoke a notice of intent to claim paternity. Of these States, many require that the putative father submit a signed, notarized written statement. While some States allow revocation of information at any time, revocation is effective only after the child's birth in some jurisdictions.
Birth Parent Expenses: About 45 states, American Samoa, and the Northern Mariana Islands have statutes that specify the type of birth parent expenses a prospective adoptive family is allowed to pay.
These expenses typically include the following:
- Maternity-related medical and hospital costs
- Temporary living expenses of the mother during pregnancy
- Counseling fees
- Attorney and legal fees; guardian ad litem fees
- Travel costs, meals and lodging when necessary for court appearances; or accessing services
- Foster care for the child, when necessary
Adoption Cost: The cost of adoption will vary, depending on where you are adopting your child from. Adopting from the United States foster care system is usually the least expensive type of adoption. In fact, it usually involves little or no cost, and states often provide subsidies to adoptive parents. Stepparent and kinship adoptions are often not very expensive either. Agency and private adoptions can range from $5,000 to $40,000 or more depending on several factors including services provided, travel expenses, birth mother expenses, requirements in the state, and other factors. International adoptions can range from $7,000 to $30,000.
LAWS REGARDING ADOPTIONS FINALIZED ABROAD
25 states and one territory (the Commonwealth of the Northern Mariana Islands) grant the same recognition and effect to final decrees of adoption when issued abroad as adoptions issued in that state or territory. Iowa currently requires that all foreign adoptions be re-finalized by Iowa residents and does not accord legal recognition to adoptions finalized abroad.
States that Allow Re-Adoption: Re-adoption is allowed by statute in 18 states upon submission of a petition accompanied by proof of adoption in a foreign court. 3 states (California, Connecticut and Tennessee) specify in their code that re-adoption is allowed if it is required by the United States Immigration and Naturalization Service. Also, the Commonwealth of Virginia allows re-adoption after a child has resided with the petitioners for a period of time.
Statutory Provisions: 17 states and 5 U.S. Territories have no statutory provisions regarding international adoption,s although 2 jurisdictions (Michigan and the District of Columbia) which have no provisions regarding international adoptions, do provide in their judicial rules procedural guidelines for the acceptance of foreign adoption decrees.