In the adoption context, “consent” refers to the parent or legal guardian agreeing to relinquish a child for adoption. The states vary on rules about what is required to give consent. Most states require a written document that is either notarized by a notary public, or signed in the presence of a judge or other designated official to make it legally binding.
The purpose of the consent requirement is to protect everyone involved in the adoption process, by guaranteeing that there is no doubt or legal dispute about the choice to give up a child for adoption. Consenting to an adoption means you as the birth parent are voluntarily terminating one’s rights as parent or guardian.
Why is Consent Considered a Necessity in Adoption?
In all states, adoption proceedings mandate that the birth parents voluntarily and knowingly consent to the adoption, except where this consent requirement is waived or forfeited. All states have regulations requiring that the birth mother consent to the adoption of her child. Furthermore, the consent of married fathers is also generally required.
In regards to unmarried fathers, the Supreme Court has ordained that with respect to those that have manifested significant paternal interests in their children, a state may not deny them the right to consent to an adoption while granting that right to unwed mothers. Therefore, in response to this ruling, states have addressed the rights of unwed fathers in adoption proceedings in a variety of ways.
For example, about more than half of the states have established putative father registries, to permit unwed fathers to register their contact information in order to obtain notice of adoption proceedings.
Who Needs to Consent?
The biological parents hold the primary right to consent to the adoption. If they are not married, the birth father may need to provide the paternity results in order to be involved in an adoption decision. In the majority of the states, birth parents who are underage have the same right to consent as adults, but a few states require that the parent of a minor parent to sign the consent.
In most states, the mother must give her permission and the father must give his approval if he has proved paternity (legal fatherhood) and a commitment to parenting the child. The only exception to having the birth parents give their express consent is if in the case the parents have had their parental rights terminated by a court order. Some reasons for terminating parental rights include abandonment, failure to support the child, incompetence, or unfitness due to abuse or neglect.
Sometimes the role of giving consent can be a duty of others such as a guardian or a child welfare agency that has custody of the child. This can occur if neither birth parent is available or if their parental rights have been terminated through a legal proceeding, such as for abandoning or neglecting the child.
Is there a Waiting Period for Consent?
Many states do impose a waiting period before a parent can consent to set a child up for adoption. This helps to ensure that the biological parents have enough time to make an informed and thoughtful decision. The longest waiting period any state has is 15 days after the child’s birth, and the shortest is 12 hours. The most common waiting period is generally up to 3 days.
The timing of the consent matters in some states too. These 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.
However in most states, consent for an adoption takes place with a notarized, written statement or an appearance before a judge. Some states also mandate that the biological parents receive counseling, be provided with an explanation of their rights, or be given access to a legal professional. If custody was granted to an adoption agency, an official from the agency may be required to sign an affidavit of consent.
Some states ordain that underage birth parents be provided with an attorney before giving consent, while others mandate consent of the minor’s birth parents. Otherwise, most states treat underage birth parents the same as adult birth parents.
Does the Child Need to Consent?
Besides obtaining the parents’ or legal guardians’ consent, in some situations the child must agree to the adoption too. Many states have laws that allow a child to veto an adoption, if he or she has reached a certain age. The age at which the child’s consent is required ranges from 10 years old to 14 years old, depending on the state. The rules are set forth in the state adoption laws.
In all states, the determination whether prospective adopters are capable parents is based on a finding that an adoption is in the best interests of the child. The law requires that the focus be on the interests of the child, rather than the interests of the birth parents, the adoptive parents, or anyone else. An adoption is typically not finalized until a probationary period of a certain number of months has passed, during which time the question of the best interests of the child may be evaluated. A court will examine and conduct investigations by child welfare professionals in determining whether a placement is in the best interests of the child.
Can The Consent Be Revoked?
The goal of adoption is to provide a stable household for a child, and therefore revocation of an adoption is very limited. Most states allow birth parents to change their minds up until the actual birth of the child because the preservation of a stable household does not start until then. Several states also allow a “cooling off” period that usually runs for a couple of days after the birth.
Finally, a few states provide for extended periods of revocation weeks or months after childbirth but this is usually not the case. It is a good idea to familiarize yourself with a particular state’s revocation procedures, as adoption laws change regularly and can drastically vary among the states.
A parent’s rights are among the most protected by law in the U.S. Due to these reasons, with rare exceptions, a parent must consent to adoption before a child is legally placed with another family. The differentiation does not matter whether it is an independent or agency adoption, birth parents must give up their parental rights in order to go through with an adoption.
This is considered an important legal step because 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 is generally considered permanent.
Keep in mind that some birth parents have a change of heart after agreeing to put up a child for adoption. Most states allow a birth parent to revoke consent to an adoption in some limited and certain narrow circumstances. For example, it is often possible to revoke consent if the decision to give up the child was made under coercion. In some states, birth parents are given a certain amount of time to withdraw consent; after that, it becomes irrevocable. Typically, consent becomes irrevocable once the court issues a final adoption decree.
When Do I Need A Lawyer?
If you are considering terminating your parental rights to place your child for adoption, there is a serious lengthy legal process to ensure that local state laws and regulations are met in order to move forward. Therefore, it is useful to seek out a professional adoption lawyer dealing with adoption cases to understand the complexities and rules.
