Birth Parent Rights

As a child's biological parent, you have the right to make decisions about the care and custody of your child, provided your decisions do not endanger the child's health or safety. Sometimes the child's best interests include the difficult decision to place the child for adoption.

You should never feel obligated to surrender your parental rights without first comprehending them. If you are thinking about putting your child up for adoption, it's important to understand the scope of your birth parent's rights, with the most extreme being the termination of parental rights.

This article delves into the parental rights of birth parents.

Termination of Parental Rights

Parents can lose their parental rights in two ways:

  1. Involuntary termination of parental rights
  2. Voluntary termination of parental rights

When birth parents place their children for adoption, they voluntarily end their parental rights. But, after a court order finds fault — such as abuse or neglect — the biological parents' rights end without their permission.

Voluntary Termination

If a birth parent voluntarily ends their parental rights, a few things have to happen before someone else can adopt their child.

Waiting Period. Some states mandate a waiting period before a parent can consent to their biological child's relinquishment for adoption. The purpose of this waiting period is to allow the birth family enough time to make an informed decision. Waiting periods range from 12 hours to 15 days. The most common duration is three days.

About 15 states do not impose a waiting period for parents to consent to the adoption proceedings. In these states, parents can consent immediately after the child's birth.

Consent. After the waiting period has expired, the birth parents can agree to the adoption.

State laws require one or both birth parents to consent to the adoption. State law, not federal law, controls consent for adoption.

The birth father's agreement isn't necessary if he fails to establish paternity or respond to an adoption proceeding notice.

In cases where one or both parents are dead or have lost their parental rights, consent can be given by the following:

  • A person with custody of the child, like a grandparent
  • A child's guardian
  • A court having jurisdiction over the child
  • A child-placing agency, such as an adoption agency or the county department of social services

Writing requirement. Most states require written consent. This needs to be signed before a court official or notary public. This rule equally applies to biological mothers and biological fathers who have proven paternity.

Establishing Paternity

A birth father can establish paternity in several ways, including:

  • Being named as the father on the birth certificate
  • Registering with a state-operated “putative father registry." A putative father claims to be the biological father but doesn't have a legal relationship with the child
  • Submitting an affidavit of paternity

Involuntary Termination

Involuntary termination of a birth parents' rights can occur if certain conditions are satisfied. Most states look to the best interests of the child in deciding whether to end the biological parent-child relationship. Common grounds for involuntary termination of parental rights include:

  • Severe child abuse or neglect of the child
  • Mental illness or incapacitation due to the parent's alcohol or drug use
  • Abandonment
  • Convictions for crimes like child sexual abuse felonies
  • A parent's lengthy incarceration

Revoking Consent

As a general rule, adoption consent is irrevocable as it aims to be a lasting and binding agreement to ensure the child's stable environment. Some states don't allow birth parents to take back their adoption consent. Other states permit revocation in very narrow circumstances, usually before a judge has signed the adoption decree. A signed adoption decree signals the finalization of the adoption process. Reasons for revocation include:

  • Involvement of fraud or coercion
  • The state allows a specific period for retracting consent
  • The state concludes that revocation is in the best interests of the child
  • The birth parents and adoptive parents mutually agree

Because adoption laws vary, you must check the adoption laws in your specific state.

Unknown Birth Parent

There are instances where a birth parent's rights are not an issue, and a birth parent's consent to adoption is not needed. This generally happens when there is an unknown parent. Most instances involve a father's identity not being known or the known parent, the mother, refusing to identify the unknown parent, the biological father.

In such cases, the mother who wants to give up the child for adoption can probably do so without involving the father. For example, in North Carolina, an unmarried mother with a child has primary rights to custody of the child.

Open Adoption

In an open adoption, birth mothers can design their own adoption plan, including selecting an adoptive family for their child. Today, most adoptions are open adoptions. This means that the birth mother, birth father, or some other biological family members maintain contact with the child after the adoptive parents have assumed legal custody and physical custody of the child.

Even though you have no legal parental rights, including obligations for child support, after giving up your child for adoption, open adoption allows you to remain a part of your child's life. Visitation rights often form a vital element of the written agreement between the parents in an open adoption.

In the past, the majority of adoptions were closed adoptions, which meant no contact between the adopted child and the biological parents.

Adult Adoption

There is a type of adoption that doesn't need parental consent. When the adoption involves an adult adoptee, birth-parent consent is not needed.

Stepparent Adoption

In a stepparent adoption, both biological parents must consent. But, if you can't locate one of the parents or they refuse to give consent, you can petition the court to end the other parent's legal rights. A home study might be a requirement.

Birth Parent Support

Many states offer programs to help ease the transition for the parties involved in the adoption, including the adopted child, the birth parents, and the prospective adoptive parents. The programs aim to reduce any uncertainty and anxiety that may arise during the adoption process.

Consult an Attorney About Birth Parent Rights

If you're thinking about offering your child for adoption or planning to adopt a child, it's vital to understand the rights and responsibilities of all parties involved. Adoptive parents are the caregivers and have legal custody of the adopted child, but in some circumstances, birth parents might still hold specific rights. An adoption attorney can give you legal advice that will help you understand your legal rights and the legal process.

If you have questions, an experienced family law attorney can give you answers.

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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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