Adoption’s Legal Details
The Facts About Adoption
Adoption’s Legal Details Add Text
Who has to sign? Can I change my mind? And other questions…
If you decide to create an adoption plan, you will be bound by the laws surrounding adoption. So, it is essential that you to know the basic facts involved in the adoption process. Here are a few important terms and conditions.
BIRTH PARENTS Once a woman delivers a baby and follows through with her adoption plan, she is called the birth mother in legal documents, while the father of her baby is called the birth father.
CONSENT TO ADOPTION One of the most important legal terms you should understand is the consent, a birth mother’s legal agreement to transfer her parental rights to the adoptive couple or the adoption agency she has chosen. Typically, she acknowledges her consent by signing an adoption consent form after the birth of her child. This begins the legal process of adoption, which the court finalizes. In most states, consent must be made in writing and signed voluntarily by the birth mother before a witness, notary public or judge. No one else is legally allowed to sign this form for the birth mother, even if she is a minor. With a few exceptions, most states allow minors to create and complete their adoption plans without parental notification or consent. Some states require that a guardian be appointed to represent the interests of a minor birth parent, but this is the exception more than the rule.
WAITING PERIODS In general most states will not allow the birth mother to sign the consent form until after the baby’s birth. However, in states they do, the birth mother is commonly granted a specific period of time (perhaps 48 hours) after the birth during which she can change her mind and revoke her consent. Because this time frame varies from state to state it must be verified by her agency, attorney or counselor. In states where the consent cannot be given until after birth, there is a mandatory waiting period, beginning after the birth, which must lapse before the consent form can be signed. These waiting periods differ from state to state and may last anywhere from immediately after the birth to a few days later. This waiting period is to ensure the state that the birth mother has had sufficient recovery time from the effects of her labor and delivery plus any medication and was fully aware of her final decision before signing the consent form. The bottom line the birth mother should understand is that the baby legally remains her child, and she retains the right to change her mind, until she signs the consent form.
CAN I CHANGE MY MIND AFTER I SIGN?
One general rule applies to a birth mother who signs the consent form and afterward changes her mind. It is possible to revoke her consent if it was obtained by fraud, duress, or by the use of improper promises by the agency, attorney or adoptive couple. However, this must be satisfactorily proved to the court by the birth mother. Aside from this situation, revocation laws vary from state to state. For example, some states allow a birth mother to revoke her consent within a few days of the birth, while others may allow her to do so until the final adoption hearing. Yet some states consider the consent to be irrevocable after being signed. Thus the birth mother needs to ask the agency, attorney or counselor handling her adoption about her state’s laws. Even though it may be possible for a birth mother to change her mind, she should never sign an adoption consent form if she is unsure about her ability to complete her adoption plan. Nullifying an adoption is not easy and will usually require the services of an attorney. Additionally, it is an emotionally and physically devastating experience for everyone involved. Therefore, the birth mother should be certain that she can complete her adoption plan before signing the consent form and placing her child with her chosen adoptive couple.
WHO ELSE MUST SIGN THE CONSENT?
Birth fathers. Although state laws regarding birth father rights differ, it is generally agreed that he should be notified. Here are four situations where his consent should be sought by the agency or attorney assisting the birth mother: 1. If the birth mother was married at the time of conception or birth of the child, both she and her husband must consent to the adoption. 2. If the birth mother was married, but her child was conceived with another man, consent from the biological or supposed father as well as her husband will be necessary in addition to her consent. 3. If an unmarried birth father has conceived a child with an unmarried birth mother, he should be notified of an impending adoption plan for his consent. This is true regarding unmarried birth parents whether or not they have lived together. 4. If the birth mother is unsure of the birth father (because she was intimate with more than one man around the time she conceived her child), each possible birth father should be notified of the impending adoption plan so that each will have been given a voice in the adoption plan, if he so desires. Some birth mothers may not be eager to have the agency or attorney notify the birth father to seek his consent. But most states will allow the birth father to sign the consent form before the child’s birth, so his involvement can be quickly concluded.
I HEARD SOMETIMES YOU COULD…
Can an adoption plan be completed without notifying the birth father or receiving his consent? Yes! Because many states now recognize and grant equal importance to the birth father’s parental rights, it is more important than ever to protect his rights to prevent his disrupting the birth mother’s adoption plan. Thus most adoption plans require that a good-faith effort be made by the birth mother’s agency or attorney to notify him of the impending adoption. This ensures against his returning later to contest the adoption plan either before or after it has been finalized by the court. Although most adoption plans are not contested by the birth father, those that are successfully contested can result in the child’s being removed from the adoptive parents and placed with the birth father. Of course, the court would have to decide that this move would be in the child’s best interests and that the birth father would be a willing and suitable parent with the financial ability to provide for the child.
EXCEPTIONS TO THE RULE In some cases, an adoption plan can be completed without notifying and receiving the birth father’s consent. Here are five circumstances in which consent is not mandatory:
1. The birth mother lacks enough information to determine the birth father’s identity. The adoption may proceed without the birth father’s consent if the court is willing to legally terminate his parental rights. This is done on a case-by-case basis, depending on the information provided by the birth mother. She must supply to the court sufficient details to ensure that her story is credible and that she truly does not know the father’s identity.
2. The birth father’s whereabouts are unknown. A diligent search must be conducted by the agency or attorney handling the adoption. If the birth father cannot be located, the agency or attorney can file a motion with the court to legally terminate his parental rights.
3. The birth father is unwilling to sign the consent forms yet does not contest the adoption. The agency or attorney could then petition the court to lawfully terminate his parental rights based on abandonment.
4. The birth father is notified, but denies his paternity. In these cases, instead of signing a consent form, the man may sign a written denial of paternity, allowing the adoption to proceed.
5. The birth mother refuses to identify the birth father because she fears that he would harm her if she involved him in the adoption. This exception cannot be used in situations where the birth mother would rather not identify the birth father because she is embarrassed to reveal his name or because he is married. Most adoption plans will not fall into one of these categories, but will instead require a good-faith effort by the agency or attorney to notify the birth father of the impending adoption plan.
WHAT LEGAL HELP CAN I GET? Typically, the attorney working for the agency or the adoptive couple will educate the birth mother about the adoption process, the consent forms, and her legal rights regarding her adoption plan. The attorney will also prepare and file all of the legal documents necessary to fulfill the adoption plan. Some state laws, however, may require that an independent attorney represent the birth mother to avoid a conflict of interest. In cases where this is not required but the birth mother feels it necessary, she can request that an independent attorney be provided by the agency or the adoptive couple’s attorney without cost to her. This attorney would counsel and advise her and represent her best interests.
WHAT ABOUT $$$?
Most states will allow an adoptive couple or agency to pay for all of the birth mother’s normal medical, legal and counseling costs associated with the birth and adoption of her child. However, most states have some restrictions regarding the amounts and types of expenses they will allow the adoptive couple or agency to provide for her. This is especially true of her living expenses incurred before her child is born. All states have laws prohibiting anyone from receiving payments for a child, either directly or indirectly. The birth mother should ask the attorney representing either the agency or the adoptive couple specifically which types of expenses and in what amounts they can legally provide. For more information regarding the type of financial assistance she may receive in an adoption, visit www.AmericanAdoptions.com.
ADOPTION LATER? Adoption is an option that is open at any time. Sometimes after bringing their child home, birth parents may realize that they do not have the financial or emotional resources needed to raise a child properly. Other times they may have circumstances which warrant their creating an adoption plan for their child. Of course, the earlier the birth parents can decide on adoption, the better it will be for both them and their baby. However, many prospective adoptive couples would welcome a child of any age into their homes. In fact, some couples are eager to embrace just such a child.
IN CLOSING… If a birth mother decides to create an adoption plan for her child, she should understand the laws governing adoption and feel comfortable with them. Should she become uncomfortable with her agency, the adoptive couple’s attorney or the adoptive couple prior to signing the consent form, she has the legal right to cancel her adoption plan or seek a replacement for any of the parties involved in her adoption plan. However, one should always strive to reach a compromise with the parties involved before taking such action.
When considering adoption, a birth mother should always feel comfortable with her plan each step of the way, having all her questions answered and her concerns addressed.