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. 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.

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.

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.

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.