Adoption Without Parental Consent

Parental consent helps to act as a safeguard for all the parties involved. It encourages meaningful and thoughtful decision-making for the birth parents.

When a parent adopts a child, a new parent-child relationship is formed. Before this can happen, the birth parents must give up their parental rights. The responsibilities of the biological parent-child relationship are transferred to the adoptive parent. The adoption severs all legal ties between the birth parents and the child.

Many adoptions involve both biological parents giving up their rights and consenting to the adoption. Consent protects children from separation from their caregivers unless it's necessary. And it reassures adoptive parents about the legality of the adoption process.

Parental consent isn't needed in some situations. For example, an unmarried pregnant woman has agreed to put her child up for adoption. If the birth mother doesn't know who the father of the child is, she doesn't need to get the father's consent to the adoption.

State law governs the adoption process. So, it's important to understand that requirements vary depending on the state. However, there are certain common guidelines about adoption without parental consent. This article discusses adoption without parental consent.

Unknown Parent

There are a few situations where a parent's consent isn't needed, such as:

  • The parent's identity is unknown
  • The known parent refuses to identify the unknown parent; the court cannot determine the unknown parent's identity

The law presumes a father to be the biological father of a child if he is married to the mother of the child at the time of the child's birth. A man who isn't married to the child's mother must establish paternity. If he doesn't establish paternity, he won't have father's rights, and his consent won't be necessary for the child's adoption.

Putative Fathers

A putative father is a man who doesn't have a legal relationship with a child but claims to be the legal father of the child. Every state has legal actions a man can take to claim paternity or acknowledge they are the parent of the child. Some states have "putative father registries" where men can declare their intention to claim paternity. If a state doesn't have such a registry, then the birth father can file an affidavit of paternity with a family court or a state human services agency.

Unfit Parents

Most states have fitness requirements for parents. If they don't meet expectations, they are legally viewed as unfit parents. Specific reasons vary by state, but they generally include:

  • Abuse
  • Neglect
  • Drug or alcohol addiction
  • Abandonment
  • Incarceration

An unfit parent determination is enough to waive consent in many states. In addition, the parental rights of those declared unfit parents by the courts can be terminated. Termination of parental rights severs the parent-child relationship.

Most, but not all, of the children adopted from foster care involve involuntary termination of parental rights. The state has custody of the child and will provide consent to the adoption plan after the prospective adoptive parents complete adoption proceedings, including a home study conducted by a social worker.

State-Specific Examples

Some states have specific statutes regarding adoption without parental consent. For example, in California, the parental consent of a father isn't required unless the man became a presumed father in the following ways:

  • Before the mother's relinquishment of the child becomes irrevocable
  • Before the consent becomes irrevocable
  • Before the termination of the mother's parental rights

Under California family law, a noncustodial parent's consent isn't necessary for adoption if the parent willfully fails to communicate and pay for the care, support, and education of the child when they were able to do so for at least one year.

In contrast, Washington D.C. law only requires six months when the parent fails to support the child. Louisiana family law only requires six months of noncommunication with the child.

As a general rule, the legal process for adoption without parental consent is the same as any other adoption. Once the court has entered an order finalizing the adoption, the authorities issue a birth certificate bearing the names of the adoptive parents. The adoptive family becomes the child's new and legal family.

Stepparent Adoptions

Stepparent adoption is a common type of adoption. Typically, the other parent must consent. However, consent isn't required if the other birth parent no longer has parental rights because of neglect, abandonment, abuse, or unfitness. There might be a court hearing. The judge will apply a “best interest of the child" standard.

Other Types of Consent

Sometimes a child has a say in the adoption. Under many state laws, a child can veto the adoption if they are of a certain age. The age needed for the adopted child's consent varies from 10 years old to 14 years old.

If an adoption agency, whether private or public, is handling the adoption, then the agency is the guardian and can provide consent after parental rights have been terminated.

Questions About Adoption Without Parental Consent? Get the Legal Help You Need

Adoption law is very complex and best handled by experienced professionals. If you want more information about adoption without parental consent, including important legal advice and legal rights, talk to an adoption attorney located near you. They can help you navigate the relevant laws for your specific situation.

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Can I Solve This on My Own or Do I Need an Attorney?

  • It is a good idea to have an attorney for complex adoptions
  • An attorney can ensure you meet all legal requirements and that your adoption is finalized appropriately
  • An attorney can help protect the best interests of adoptive children, adoptive families, and birth parents
  • For simple adoptions, you may be able to do the paperwork on your own or by using an agency

Get tailored advice at any point in the adoption process. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Adopting a child is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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