Consent to Adoption

Statutes at a Glance

Consent plays a pivotal role in all adoptions; all adoptions are based upon the consent of persons or agencies legally empowered with the care or custody of the child. Consent 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 children to prevent unnecessary and traumatic separations from their adult caretakers; for birth parents to prevent uninformed, hurried, or coerced decisions; and for 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 paternity¹, 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 which 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 best friend of the child appointed by the court

Consent of Minors

Approximately² 47 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands require that older children give consent to their adoption. Twenty-three States and the Virgin Islands set the age of consent at 14 years; 18 States, American Samoa, and Guam at 12 years; and seven States, the Northern Mariana Islands, and Puerto Rico require consent of children age 10 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.

When Consent Can Be Executed

Approximately 46 States and the District of Columbia specify in statute when a birth parent may execute a consent to adoption. Birth fathers can generally execute consent at any time, while a birth mother can usually only execute consent after the birth of the child. Sixteen States and the Northern Mariana Islands allow consent at any time after the birth, while 28 States require a waiting period before a consent can be executed. The shortest waiting periods are 12 and 24 hours, and the longest are 15 States, 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 birth.

The manner in which consent can be executed varies considerably from State to State. In some States, consent may be executed by a written statement witnessed and/or notarized by a notary public. Other States may require an appearance before a judge, or the filing of a petition of relinquishment. Some States require that the parent be provided with counseling and have his/her rights and the legal effect of relinquishment explained to him/her prior to consent. In those cases where custody of the child has previously been placed with an agency, the head of the agency may sign an affidavit of consent.

In most States, a birth parent who is a minor is treated no differently than other birth parents. However, in some States, the minor parent must be provided with separate counsel prior to execution, or a guardian ad litem must be appointed to either review or execute the consent. In other States and Guam, the consent of the minor's parents must be obtained.

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, approximately five States, the District of Columbia, American Samoa and the Virgin Islands make no provisions for revocation of consent, and approximately 23 States and Puerto Rico only allow revocation when there are specific circumstances-generally when there is strong evidence of fraud, duress, undue influence, coercion, or misrepresentation.

In other States, provisions are made for withdrawal or revocation of consent under specific circumstances or within specified time limits. Several States have specific time periods, generally ranging from three to 21 days, when revocation is allowed for any reason. In other States, revocation requires the mutual consent of the adopting family or a court finding that revocation is in the best interest of the child. In some States, the issue of consent may be reconsidered if an adoptive placement is not made with a specified family or within a specific period of time.

In all cases, consent becomes final and irrevocable once a final decree of adoption has been issued by the court.

¹ In those States where there is a putative father registry, a birth father who fails to register in the prescribed manner and within the proper time period, may lose the right to consent. Other jurisdictions require unwed fathers to file a notice of their paternity claim within a certain period of time.

² The word approximately is used to stress the fact that the statutes are constantly being revised and updated.

Statutes-At-A-Glance are products summarizing elements of State adoption laws prepared by the National Adoption Information Clearinghouse. The Clearinghouse is a service of the Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, U.S. Department of Health and Human Services.

The Statutes-At-A-Glance listings summarize specific sections of each State's code. While every attempt has been made to be as complete as possible, additional information on these topics may be in other sections of a State's code as well as in agency regulations, case law, and informal practices and procedures. Readers interested in interpretation of specific statutory provisions within an individual jurisdiction should review the State's statutory provisions in their entirety, review applicable case law interpreting the statutes, and consult with professionals within the State familiar with the statutes' implementation.

To obtain additional copies of this product or more information about other Clearinghouse products, contact the Clearinghouse at:

National Adoption Information Clearinghouse
330 C Street, SW
Washington, DC 20447
(888) 251-0075
E-mail: naic@calib.com
Website:http://www.calib.com/naic

We welcome your comments and suggestions about this product.

Readers should not rely on this summary for legal advice.