Consent to Adoption: Introduction
"Consent" in the adoption context refers to the agreement by a parent, or a person or agency acting in place of a parent, to relinquish the child for adoption and to release all rights and duties with respect to that child. In most States, the consent must be in writing and either witnessed and notarized or executed before a judge or other designated official. State legislatures have developed a range of provisions designed to ensure protection for those individuals involved, including:
- Children (to prevent unnecessary and traumatic separations from their adult caretakers)
- Birth parents (to prevent uninformed, hurried, or coerced decisions)
- Adoptive parents (to prevent anxiety about the legality of the adoption process)
Who Must Consent?
In all States, the birth mother and the birth father (if he has properly established paternity) hold the primary right of consent to adoption of their child. Either one or both parents may have these rights terminated for a variety of possible reasons, including abandonment, failure to support the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect. When neither birth parent is available to give consent, the responsibility can fall to other legal entities, such as:
- An agency that has custody of the child
- Any person who has been given custody
- A guardian or guardian ad litem
- The court having jurisdiction over the child
- A close relative of the child
- A "next friend" of the child, who is a responsible adult appointed by the court
Consent of Minors
Nearly all States, the District of Columbia, and the U.S. Territories require that older children give consent to their adoption. Approximately 24 States, the District of Columbia, and the Virgin Islands set the age of consent at 14 years; 18 States, American Samoa, and Guam at 12 years; and 7 States, the Northern Mariana Islands, and Puerto Rico require consent of children age 10 years and above. In some States, the requirement can be dispensed with if the child lacks the mental capacity to consent, or the court finds it in the best interest of the child to dispense with consent. Colorado requires that the child be provided with counseling prior to giving consent.
When Consent May Be Given
Approximately 46 States and the District of Columbia specify in statute when a birth parent may execute consent to adoption. Fifteen States and the Northern Mariana Islands allow birth parents to consent at any time after the birth of the child, while 29 States require a waiting period before consent can be executed. Approximately 12 States and the Northern Mariana Islands allow an alleged birth father to execute consent at anytime before or after the child's birth. The shortest waiting periods are 12 and 24 hours, and the longest are 10 and 15 days. The most common waiting period, required in 14 States and the District of Columbia, is 72 hours, or 3 days. Only two States (Alabama and Hawaii) allow the birth mother to consent before the birth of her child; however, the decision to consent must be reaffirmed after the child's birth.
Revocation of Consent
Adoption is meant to create a permanent and stable home for a child; therefore, a validly executed relinquishment and consent to adopt is intended to be final and irrevocable. As a result, the right of a birth parent to revoke consent is strictly limited. In most States, the law provides that consent may be revoked prior to the entry of the final adoption decree under specific circumstances or within specified time limits. The circumstances under which withdrawal of consent may be permitted by a State can include:
- Consent was obtained by fraud, duress, or coercion.
- The birth parent is allowed to withdraw consent within a specified period of time, after which consent becomes irrevocable.
- There is a finding that withdrawal of consent is in the best interests of the child.
- The birth parents and adoptive parents mutually agree to the withdrawal of consent.
- An adoptive placement is not finalized with a specific family or within a specified period of time.
Consent becomes final and irrevocable once the court issues a final decree of adoption.