Consent to Adoption: What Biological Parents Need To Know

Once a parent relinquishes their rights, the legal relationship between the birth parent and the child ends.

A parent's rights are among the most protected by law in the United States. That's why, with few exceptions, a parent must consent to adoption before a child is legally placed with another family. Regardless of the type of adoption—whether independent adoption, open adoption, or agency adoption—birth parents must agree to the termination of parental rights to complete the adoption, absent a court finding to the contrary.

Consent to adoption is an important legal step. Parents can revoke consent under certain circumstances. State law for consent varies.

This article focuses on the laws and procedures governing biological parents' consent to adoption. It includes:

  • Specific consent requirements
  • Waiting period for giving consent
  • Revocation of consent

Consent Requirement

When biological parents consent to adoption, they agree to relinquish the child to an adoptive family. Relinquishment means the birth parent's legal rights and responsibilities for the child end. For example, the birth parents will not raise the child or have to pay child support. The adoptive parents become responsible for the adopted child.

Upon finalization of the adoption process, the court places the original birth certificate under seal. The court orders the issuance of a new birth certificate. The adoptive parents become the adoptee's legal parents in the revised birth certificate. The adoptive parents receive the child's birth certificate. The adoptive parents take custody of the child if they don't already have custody.

States generally require that consent to adoption be in writing. A qualified official must witness the signing, or it needs to be notarized. The consent form is not part of the adoption petition.

The father's consent to adoption isn't always needed. In many states, unwed fathers who don't file a notice of a paternity claim may lose their right to consent to adoption proceedings. Unwed fathers who don't respond to an adoption notice usually lose this right as well.

If the unmarried birth father wants a say in the adoption plan, he will have to establish that he is the biological father. To establish that he is a parent and exercise a father's rights, an unmarried man can take several actions:

  • Request that the birth mother can name him as the child's father on the birth certificate
  • Register with a putative father registry
  • Submit an affidavit of paternity

In some instances, the biological parent's consent to adoption is not required. If a court has terminated their parental rights, the biological parent's approval isn't needed to complete the adoption process. This happens in many instances when the court finds child abuse. If there is a guardian, such as a grandparent, then the guardian will provide consent. If the child is being adopted from foster care, then the public agency that has custody of the child will provide consent.

Timing of Consent

Adoption laws on waiting periods and consent vary. State law governs consent. All but three states (New York, Idaho, and Oregon) and the District of Columbia specify when a birth parent may provide consent. There may be waiting periods or other time-related rules for giving consent. These waiting periods apply to the adoption of newborns.

State When Parent(s) Can Consent to Adoption
Alabama Any time after the child's birth; the mother may consent during pregnancy but must reaffirm after the child's birth
Alaska Any time after the child's birth
Arizona Not until three days after the child's birth
Arkansas Any time after the child's birth
California Any time after the biological mother's discharge from the hospital (direct); any time after the child's birth (agency)
Colorado After the birth parents undergo state-specific counseling
Connecticut Not until two days after the child's birth
District of Columbia Any time after the child's birth
Delaware Any time after the child's birth (mother); any time before or after the child's birth (biological father)
Florida Not until two days after the child's birth (mother); any time after the child's birth (father)
Georgia Any time after the child's birth
Hawaii Parents may consent during pregnancy but must reaffirm after the child's birth
Idaho No statutory timeline; any time after the child's birth
Illinois Not until three days after the child's birth (mother); any time before or after the child's birth (father)
Indiana Any time after the child's birth (mother); any time before or after the child's birth (biological father)
Iowa Not until three days after the child's birth
Kansas Not until 12 hours after the child's birth (mother); any time before or after the child's birth (father) - if before, the father must have an attorney
Kentucky Not until three days after the child's birth
Louisiana Not until three days after the child's birth (agency); not until five days after the child's birth (private); but the father may have the ability to consent any time before or after the child's birth
Maine Not until three days after the child's birth (a petition to adopt must be pending)
Maryland Any time after the child's birth
Massachusetts Not until four days after the child's birth
Michigan Not until three days after the child's birth
Minnesota Not until three days after the child's birth
Mississippi Not until three days after the child's birth
Missouri Not until two days after the child's birth
Montana Not until three days after the child's birth
Nebraska Not until two days after the child's birth
Nevada Not until three days after the child's birth; the biological father may consent any time before or after the child's birth if not married to the mother
New Hampshire Not until three days after the child's birth
New Jersey Not until three days after the child's birth; the biological father may also consent by denying paternity any time before the child's birth
New Mexico Not until two days after the child's birth
New York No statutory timeline; any time after the child's birth
North Carolina Any time after the child's birth (mother); any time before or after the child's birth (father)
North Dakota Any time after the child's birth
Ohio Not until three days after the child's birth
Oklahoma Any time after the child's birth (mother and husband); any time before or after the child's birth (unmarried, putative father)
Oregon No statutory timeline; any time after the child's birth
Pennsylvania Not until three days after the child's birth (mother); any time before or after the child's birth (putative father)
Rhode Island Not until 15 days after the child's birth
South Carolina Any time after the child's birth
South Dakota Not until five days after the child's birth
Tennessee Not until two or three days after the child's birth, depending on circumstances; the waiting period can be waived by the court
Texas Two days after the child's birth (mother); any time before or after the child's birth (putative father)
Utah Not until 24 hours after the child's birth (mother); any time after the child's birth (father)
Vermont Not until 36 hours after the child's birth
Virginia Not until three days after the child's birth
Washington Not until two days after the child's birth
West Virginia Not until three days after the child's birth
Wisconsin Any time after the child's birth
Wyoming Any time after the child's birth

Note: Some states have different waiting periods for children with Native American birth parents.

Consent Process

In most states, consent for an adoption occurs with a notarized, written statement or an appearance before a judge.

Some states also require that birth parents:

  • Be counseled by a social worker
  • Be provided with an explanation of their rights
  • Receive access to an attorney

If an adoption agency has custody of the child, an official at the agency will sign an affidavit of consent.

In some states, underage birth parents must have an attorney before they can give consent. In other states, the minor's birth parents themselves need to give consent. Otherwise, most states treat underage birth parents the same as adult birth parents.

Even with consent, a home study is still required.

Revocation of Consent

Adoption laws on the revocation of consent vary. Once the parent of the child gives consent to an adoption, it can be very difficult to go back. A birth parent may revoke consent to the adoption in very limited circumstances in most states. Some states provide clear time periods where a party can revoke consent for any reason. The exceptions, where revocation is not available, are Idaho, Massachusetts, and Utah.

Courts may permit revocation if fraud or coercion tainted the agreement. They may also permit revocation if they find that it is in the best interests of the child.

States vary in their rules for revoking consent. State limitations may change depending on the nature of the revocation and the time that has elapsed. So, some states may appear in multiple sections below.

State When Parent(s) Can Revoke Adoption Consent
Alabama Five days after childbirth or signing, whichever is later
Alaska Ten days after signing; later, if the court finds it in the child's best interest
Arkansas Ten days after signing
California 30 days after signing
District of Columbia 14 days after signing
Georgia Four days after signing
Iowa 96 hours after signing; at any other time, only if there was fraud, coercion, or material misrepresentation of fact or law
Kentucky Three days after signing
Maine Five days after signing
Maryland 30 days after signing
Minnesota 10 working days after signing
North Carolina Seven days after signing
Tennessee Three days after signing; if alleging fraud or duress, then must file within 30 days after signing for a court hearing
Texas 10 days after signing (under limited circumstances)
Vermont 21 days after signing
Virginia Seven days after signing (parental placement adoption); after the child is 10 days old, and seven days after executive of an entrustment agreement (agency adoption)
Washington At any time prior to filing the adoption decree

In some states, consent may be revoked at any time for the child's best interest or if a court finds fraud, duress, or coercion. Those states are:

  • Arizona
  • Florida
  • Georgia
  • Hawaii
  • Iowa (requires clear and convincing evidence)
  • Kansas (requires clear and convincing evidence consent was not voluntary; withdrawal must come before final adoption decree issues)
  • Louisianna
  • Mississippi (requires clear and convincing evidence)
  • Nebraska (no statutory provision; based on caselaw)
  • Nevada (no statutory provision; based on caselaw)
  • New Hampshire (must raise before final decree issues)
  • New Jersey (adoption agency can seek revocation)
  • New Mexico (must raise before final decree issues)
  • New York (also, if consent was made outside of court, may file revocation in 45 days and obtain hearing)
  • North Dakota (must raise before final decree issues)
  • Ohio (must raise before the interlocutory order or the final order when there is no interlocutory order)
  • Oklahoma (conditions on when it must be raised)
  • Oregon
  • South Carolina (must raise before final decree)
  • Tennessee (requires clear and convincing evidence)
  • Utah (no statute; based on caselaw)
  • Vermont (must raise before final decree)
  • Virginia (must raise before final decree)
  • West Virginia
  • Wyoming

In other states, consent can be revoked to protect the best interests of the child or based on fraud or duress, but only within a certain time period. The table below outlines the time frames for these states.

State Revocation Time Period
Alabama 14 days if consistent with the child's best interest; any time for fraud/duress
Colorado 90 days of order, with clear and convincing evidence of fraud or duress
Illinois By the mother or father within 12 months (fraud or duress); if the father consented before birth, he can also revoke consent in the first three days after the child's birth
Indiana 15 days after signing
Michigan Five days after signing
Missouri Prior to filing the adoption decree; only if consent was not voluntary
North Carolina Five days
Pennsylvania 30 days or 60 days after signing or the birth of the child (depending on circumstances)
Rhode Island 180 days after the decree or order is filed
South Dakota Two years from the date of termination of parental rights; no time bar on fraud claims
Washington One year after the decree is filed
Wisconsin 30 days after the decree is filed

In a handful of states, consent may be revoked by mutual agreement of the parties at any time before the court has terminated any parental rights or a final adoption decree has been filed. Those states are:

  • Connecticut
  • Montana
  • Washington
  • West Virginia

In North Carolina, if a parent revokes but then gives consent a second time, second consent is irrevocable.

Some states also have different revocation periods for Native American children. For example, Washington allows revocation for Native American children for any reason before the entry of the final adoption decree.

As you can see, the rules of revocation change depending on the state you live in and the nature of the revocation. If you are considering revocation of consent to an adoption decree, it is best to speak with legal professionals about your rights.

Learn More About Consent to Adoption by Talking to an Attorney

Family law provisions regarding adoption and birth parent rights can be complicated. They also vary from state to state. An adoption attorney can provide prospective adoptive parents with important adoption information and legal advice. If you have questions about consent to adoption, contact an adoption attorney to discuss your situation.

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

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  • 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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