Consent to Adoption: What Biological Parents Need to Know
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. Whether an independent or agency adoption, birth parents must give up their parental rights in order to go through with an adoption.
This is an important legal step: Once a parent relinquishes their rights, the legal relationship between birth parent and child is severed. Parental consent may be revoked in some states under very limited circumstances, but it's typically considered permanent.
This article focuses on the laws and procedures governing biological parents' consent to adoption including the following:
- Specifc consent requirements;
- Waiting period for giving consent; and
- Revocation of consent.
Requirement of Consent
When a biological parent consents to an adoption, they agree to relinquish the child to another family. The parent releases all their parental rights and responsibilities. States generally require that consent to adoption be in writing and either witnessed and notarized or executed before a judge or other qualified official. The biological mother and father (provided he has established paternity) hold the primary right of consent with respect to adoption in all states.
In many states, unwed fathers who don't file a notice of a paternity claim may lose their right of consent. Unwed fathers who don't respond to an adoption notice usually lose this right as well. Finally, biological parents' consent to adoption is not required if a court has terminated their parental rights.
Timing of Consent
All but three states (New York, Idaho and Oregon) specify when a birth parent may provide consent. There may be waiting periods or other time-related rules for giving consent:
- Consent may be given any time after the child's birth: Alaska, Arkansas, California, Colorado, Delaware, Georgia, Indiana, Maine, Maryland, Michigan, North Carolina, North Dakota, Oklahoma, South Carolina, Wisconsin, Wyoming;
- Birth father may give consent any time before or after child's birth: Alabama, Delaware, Hawaii, Indiana, Louisiana, Nevada, New Jersey, North Carolina, Oklahoma, Pennsylvania, Texas, Virginia;
- Three-day waiting period before consent may be executed: Arizona, District of Columbia, Illinois, Iowa, Kentucky, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia;
- Other waiting periods: Vermont (36 hours); Connecticut, Florida, Missouri, Nebraska, New Mexico, Texas, Washington (48 hours); Massachusetts (fourth day after child’s birth); Louisiana and South Dakota (five days); California (after biological mother’s discharge from hospital);
- Mother may consent before birth of child, but must reaffirm after child's birth: Alabama and Hawaii.
Consent to Adoption: The 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 receive counseling, be provided with an explanation of their rights, or be given access to an attorney. If custody was granted to an adoption agency, an official at the agency may be required to sign an affidavit of consent.
Some states require that underage birth parents be provided with an attorney prior to giving consent, while others require consent of the minor’s birth parents. Otherwise, most states treat underage birth parents the same as adult birth parents.
Revocation of Consent
Once a parent gives consent to an adoption, it can be very difficult to go back. In all states (except Massachusetts and Utah), a birth parent may revoke his or her consent to adoption in very limited circumstances. Consent may be revoked in if the consent was obtained by fraud or coercion, or if it's deemed in the best interests of the child. States have different rules for when and how parental consent to adoption may be revoked:
- Consent obtained through fraud or coercion may be revoked: 21 states, including Florida, Illinois, New Jersey, Virginia, and Washington;
- Consent may be revoked within a certain time period: Ten states and the District of Columbia, including California (30 days) and Mississippi (six months);
- Revocation of consent in best interests of the child: Alaska, New York, Rhode Island, Alabama, Connecticut, Hawaii, Indiana, New Hampshire, North Dakota, Ohio, South Carolina;
- Revocation by mutual agreement of parties: Montana, North Carolina, Oklahoma, Vermont, Virginia, West Virginia.
Learn More About Consent to Adoption by Talking to an Attorney
As you can see, adoption and birth parent rights can be complicated and vary from state to state. If you have additional questions about consent to adoption or related topics, consider contacting a family law attorney to discuss the specifics of your situation.
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