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 the birth parent and child is severed. Parental consent may be revoked under certain circumstances. States vary in their rules for consent.
This article focuses on the laws and procedures governing biological parents' consent to adoption including the following:
- Specific 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 to 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: Alabama, Alaska, Arkansas, Delaware, District of Columbia, Georgia, Indiana, Maine, Maryland, Michigan, North Carolina, North Dakota, Oklahoma, South Carolina, Wisconsin, and Wyoming;
- Birth father may give consent any time before or after child's birth: Delaware, Indiana, Louisiana, Nevada, New Jersey, North Carolina, Oklahoma, Pennsylvania, Texas, and Virginia;
- Two-day waiting period before consent may be executed: Connecticut, Florida, Missouri, New Mexico, Texas, and Washington;
- Three-day waiting period before consent may be executed: Arizona, Illinois, Iowa, Kentucky, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia;
- Other waiting periods: California (after biological mother's discharge from hospital); Colorado (birth parents must undergo state-specific counseling first); Lousiana (5 days); Massachusetts (4 days); Rhode Island (15 days); South Dakota (5 days); Utah (24 hours for birth mother, anyone else is any time after birth); and Vermont (36 hours);
- Mother may consent before birth of the child but must reaffirm after child's birth: Alabama and Hawaii.
In several states, there are different waiting periods for children with Native American birth parents. For example, Alaska and Washington require parents to wait an additional 10 days before consenting to the adoption.
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 the 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 Idaho, Massachusetts, and Utah), a birth parent may revoke his or her consent to the 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 vary in their rules for revoking consent. Some states' limitations change depending on the nature of the revocation and the time that has elapsed, which is why they may be available in multiple sections below:
- Consent may be revoked within a certain time period for any reason: Alabama (5 days); Arkansas (10 days after childbirth or signing, whichever is later); California (30 days); District of Columbia (10 days); Iowa (96 hours); Kentucky (20 days); Lousiana (6 days); Maine (3 days); Maryland (30 days); Minnesota (10 days); North Carolina (7 days); Tennessee (10 days); Texas (10 days); Vermont (21 days); Virginia (until child is 25 days old or 15 days have elapsed since execution of agreement);
- Consent may be revoked at any time for the child's best interest or finding of fraud, duress, or coercion: Arizona, Florida, Georgia, Hawaii, Iowa (requires clear and convincing evidence); Kansas (requires clear and convincing evidence); Mississippi (requires clear and convincing evidence); Nevada; New Hampshire; New Jersey (adoption agency has discretion to seek revocation); New Mexico; New York (adoption agency has discretion to seek revocation); North Dakota; Ohio; Oklahoma; Oregon; South Carolina; Tennessee (requires clear and convincing evidence); Utah; Vermont; West Virginia; and Wyoming
- Consent may be revoked in the best interest of the child or upon showing of fraud or duress, within a certain 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 (within 12 months); Indiana (30 days); North Carolina (5 days); Rhode Island (180 days); South Dakota (2 years); Washington (1 year); and Wisconsin (1 year)
- Consent may be revoked by mutual agreement of the parties any time before the court has terminated any parental rights: Connecticut; Montana; Pennsylvania; Washington; and West Virginia
- Other guidelines: Michigan (may petition for hearing to grant revocation); North Carolina (if parent revokes and gives consent a second time, second consent is irrevocable)
Some states 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 and for fraud or duress raised within 2 years.
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
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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