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Consent to Adoption
Consent is the formal process necessary to relinquish parental rights to a person to be adopted and allow an adoption to proceed. Like most other laws concerning adoption, the laws concerning consent to adoption vary among states. This FAQ is a general overview about when, how, and from whom consent is required.
Frequently Asked Questions
Q: Who must consent to the adoption?
A: All states require both the birth mother and the birth father, if the father has established paternity, to give consent. However, a birth parent may not be required to give consent or may not have a right to object to an adoption if that parent’s rights have been terminated. If parental rights have been terminated then the person or agency having custody of the child must consent.
Q: How does a father establish paternity in order to give or refuse consent to adoption?
A: Some states have a presumption of paternity for certain circumstances, such as marriage. Some states require fathers to file a paternity claim in order to establish parental rights. Other states require fathers to register on the states putative father registry within a specified period of time in order to preserve the right to consent. Check your state laws on how to establish paternity in your jurisdiction.
Q: What if no birth parent is available to consent to the adoption?
A: If there is no birth parent available, the right to consent would go to a legal custodian, such as a person or an agency with custody of the child, a legal guardian, a guardian ad litem, a close relative, or a court appointed friend of the child or child’s family.
Q: Does a minor child have to consent to the adoption?
A: All states except Louisiana statutorily require an “older child” to give consent to his or her adoption. The definition of an “older child” varies according to individual state law and ranges from 10 to 14 years of age. However, some exceptions to this requirement include mental incapacity and best interests.
Q: When do parties give consent?
A: Individual state laws specify when and in what manner birth parents can give consent. Some states allow a putative father to consent at any time before or after the child is born. Although a few states allow birth mothers to give preliminary consent before a child’s birth, all states require a mother to wait until after the child is born to give final, valid consent. Some states allow birth parents to consent at any time after the child is born; however, the majority of states require a waiting period, usually 72 hours, before consent can be rendered.
Q: How does a birth parent give consent?
A: The manner or process for giving consent varies from state to state. Many states require the birth parent(s) or legal custodian file a written, notarized statement of consent. Some states require a more formal process such as appearing in court before a judge or filing a petition of relinquishment. Some states also require counseling be provided prior to giving consent or legal counsel be provided so that the birth parent(s) understand the legal effects of relinquishing parental rights to a child.
If the birth parent is a minor, the process of consent is usually the same; however, some states require a minor to have separate legal counsel or an appointed guardian to execute the consent, or require consent from the parent of the minor.
Q: How does an agency give consent?
A: If a child is being adopted from an agency, the head of the agency may give consent by signing an affidavit. When an agency is transferring rights to adoptive parents, it is often called Relinquishment instead of consent.
Q: Can consent be revoked?
A: Once consent is properly executed, that consent is meant to be permanent and irrevocable. Some state statutes either prohibit or make no provision for revocation of consent. Most states allow very limited circumstances when consent may be revoked. These circumstances include: when a birth parent gave consent under fraud, duress, coercion, or misrepresentation; withdrawal is in the best interest of the child; or mutual agreement of the parties. Some states allow a birth parent to revoke consent for any reason for up to 21 days after giving consent. However, once the court issues the final decree of adoption, consent is irrevocable.
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