Consent to Adoption: Introduction

In the adoption context, "consent" means a parent or legal guardian agreeing to relinquish a child for adoption. Whether you are an adoptive family contemplating an open adoption or looking to adopt out-of-state, consent is a critical step in the process. State law governs consent, even for nonresidents considering adoption in a different state.

State laws vary on requirements for giving consent. Most states insist on a written document that is either notarized by a notary public or signed in the presence of a judge or other designated official.

This clarity is important because consenting to adoption means voluntarily terminating one's rights as a parent or guardian.

Who Must Consent?

The birth mother and birth father hold the primary right to consent to the adoption. However, a birth parent's consent isn't necessary if the court finds fault, such as child abuse, neglect, or abandonment, and parental rights have been terminated.

If parental rights are terminated, consenting to the petition for adoption can fall to others besides the child's parents. This generally includes a guardian such as a grandparent, a guardian ad litem, or a child welfare agency with custody of the child.

In many public agency adoptions, the Department of Health and Human Services has already received an order from the court to terminate parental rights. In such instances, only agency consent is required. If the child is in foster care, caregivers such as a foster family or a foster parent are rarely responsible for providing consent for the foster child's adoption.

The adoption agency might be responsible for providing consent in an adoption involving a private agency.

An unwed father's consent may not be necessary in certain circumstances. The father's consent isn't needed:

• If the unmarried father failed to establish legal paternity
• If the unwed father is an unfit parent
• If the unmarried father has abandoned or neglected the child
• If the unwed father does not respond to a notice of an adoption proceeding

If the unmarried birth father wants to play a role in adopting the child, then the birth father will need to establish paternity. The easiest way to assert paternity is to list the father on the child's birth certificate, but this alone does not establish paternity. Another way a potential father may assert paternity is to register with a “father registry." In those states, if a father doesn't register and doesn't do so within a specified timeframe, he will lose the right to object or consent to the adoption. A father that signs an affidavit acknowledging paternity in family court or with the state Department of Social Services establishes paternity. If a party later challenges this, a party can file a formal action and seek DNA testing to confirm paternity. A potential father can also file a paternity lawsuit and seek DNA testing to establish paternity after the child's birth. A court hearing will then decide.

In many states, underage birth parents have the same right to consent as adults, though a few states require the parent of a minor parent to sign the consent.

Even though the birth parents have consented to the adoption, a home study will still be required. This is particularly important when adopting a child with special needs. The adoptive family must be prepared and equipped to handle the unique requirements of caring for a child with special needs.

Adoption Waiting Period

Although it's tough on prospective adoptive parents, many states impose a waiting period before a parent can consent to give a child up for adoption. The waiting period regulation aims to ensure that the birth parents have enough time to make an informed, unhurried decision. Any state's longest waiting period is 15 days after the child's birth, and the shortest is 12 hours. The most common waiting period for relinquishment of parental rights is three days.

In many states, a social worker provides counseling and explains the availability of alternative services to the relinquishing parent during the waiting period.

Revocation of Consent

Sometimes birth parents have a change of heart after agreeing to the adoptive placement. Most states allow a birth parent to revoke consent to relinquish a child only in certain narrow circumstances. For instance, it is often possible to withdraw 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 which it becomes irrevocable. Once that revocation period has elapsed, the adoptive parents can move toward the finalization of the adoption. Adoptions are finalized when the court issues a final adoption decree.

Laws around the legal rights to consent and adoption revocation vary from state to state. Here's a sampling of revocation laws from several states, including California, New York, Florida, Maryland, and South Carolina.

California

In California, the birth mother may sign a consent for adoption any time after the child's birth. However, the consent becomes irrevocable after the state's mandatory 30-day revocation period. In an agency adoption, consent can be revoked only within 10 days. In a stepparent adoption, consent can only be revoked with court approval.

Florida

In Florida, the birth mother has a 48-hour waiting period after the child's birth before she can consent to adopt a newborn or infant. If the child is over 6 months old when the birth mother signs the consent, she has three business days to withdraw consent. Consent can only be set aside if fraud or duress is proven.

The birth father can consent at any time after being notified of the pregnancy. The father has no waiting period.

Maryland

The deadline for revoking consent in Maryland depends on the type of adoption and who is responsible for providing consent. Maryland law allows birth parents to consent at any time after the child's birth. Consent becomes irrevocable after 30 days unless there's proof of fraud, duress, or undue influence.

Public agencies may revoke consent up until the court grants adoption.

New York

In New York, birth parents have 45 days to revoke consent. But even if consent is withdrawn during that time frame, if the adoptive parents oppose the withdrawal of consent, the child will not be returned to the birth parents. There will be a hearing. The judge will determine if consent was withdrawn correctly. The judge will also decide custody of the child based on the best interests of the child.

South Carolina

In South Carolina, birth parents can give consent at any time. Consent becomes irrevocable upon signing, except in the case of duress, fraud, or undue influence.

The Consent of the Child

In some circumstances, besides obtaining the parents' or legal guardian's consent, the child must also agree to the adoption. Many states have laws that say a child can veto an adoption if they have reached a certain age. The age at which the child's consent is required varies from 10 years of age to 14, depending on the state. But, the court may issue a waiver of the adopted child's consent requirement upon a finding that it is not in the best interests of the child to require the adoptee's consent.

Consent for Stepparent Adoption

Both biological parents must give consent to a stepparent adoption. If one of the parents can't be located or refuses to agree to the adoption, you can ask the court to terminate the other parent's legal rights. The court will determine if the adoption is in the best interests of the child. A home study might be required.

If the child is over a certain age, then the child must also consent to a stepparent adoption.

The Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) of 1978 is a federal law that governs the adoption of children with Native American or Alaskan Native heritage. Its purpose is to "protect the best interests of Indian children and promote the stability and security of Indian tribes and families."

Caseworkers must take “active efforts" to keep Native children with their biological families. If that is not possible, social workers must give preference to Native families when placing Native children.

The ICWA applies to foster care placements, pre-adoption placements, and adoptions.

Prospective adoptive parents should be aware that the ICWA preempts state law on consent, revocation, and termination of rights.

Under ICWA, consent for adoption must be given in writing and recorded before a judge, and only after the child is at least 10 days old. Also, the adoption act allows a parent to withdraw consent for any reason as long as the final decree of adoption has not been issued.

The U.S. Supreme Court heard oral arguments in November 2022 in a case challenging the ICWA. The state of Texas and three non-Native families sued. The families sought to adopt or foster Native children. The plaintiffs argued that the law illegally discriminates based on race and oversteps federal jurisdiction. On June 15, 2023, the Supreme Court upheld the ICWA in a 7-2 vote.

Consent in International Adoptions

In international adoptions, obtaining consent can vary based on the child's country of origin and specific adoption laws. Generally, the Hague Adoption Convention, an international treaty, guides these procedures. The Convention emphasizes that consent must be freely given, informed, and not induced by payment or coercion. It also necessitates that authorities in the child's country of origin ensure that the child is adoptable and that adoption is in the child's best interests.

Get Legal Help With Your Questions About Consent and Adoption

Various legal issues can arise in giving or getting consent to an adoption. You don't have to navigate the process alone; get the help of a family law attorney who can help clarify the process and its requirements in your state. Meeting with an adoption attorney can help you understand your options and how to protect your rights best. Visit our attorney directory to find a lawyer near you who can help.