Consent of the Person to Be Adopted

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 What Is Adoption? Who Is Eligible to Adopt?

Adoption refers to a legal process that requires court approval in order for an adult to become the legal guardian of a child that is not their biological child. It is important to note that each state has its own requirements and conditions that prospective adoptive parents must meet before the adoption can take place.

The purpose of adoption is to establish a formal, legal parent-child relationship between an individual and another individual. Then, once the adoption process is completed, the adopted child is granted all rights as if they were their adoptive parent’s biological child. This means that the adoptive parent will be considered the adopted child’s legal guardian.

In the event of a divorce, the adoptive parent will have the right to custody, visitation, and/or child support. These rights also include inheritance rights for the adopted child under the laws of intestacy or a will/trust.

Through the adoption process, the parental rights and obligations are transferred from the child’s existing legal or biological parents to the adoptive parents. However, a child’s biological parents are automatically granted parental rights. This means that in order for a transfer of legal rights from the biological parent(s) to an adoptive parent(s), certain issues must be addressed. One of the requirements for an adoption to occur is either the termination of parental rights of the biological parents and/or the consent of the biological parents to the adoption. This means that the biological parents must give consent to the adoption.

Can a Mentally Incompetent Adult Give Consent to Be Adopted?

When it comes to adoption, consent is the term that refers to the agreement by a biological parent, or a person or agency acting in place of the biological parent, to relinquish a child for adoption and release all legal rights and duties with respect to that child.

Importantly, what constitutes proper consent will vary by state and will be regulated by State statutes, not federal laws. In most States, the consent to adopt must be made in writing, witnessed, and notarized in order to be considered valid. Further, most states require that the biological parent or agency acting in place of the biological parent make an informed consent.

In general, informed consent means making a decision with a full understanding of all the relevant facts, including risks and available alternatives. This means that the person making the consent must be in a proper mind state. If the individual is mentally incompetent, then that may affect their ability to make an informed consent to the adoption. However, this may not always delay the adoption process.

For example, in the state of Alabama, and many other states, consent is not required for adoption if the biological parent has been adjudged incompetent or mentally incapable of consenting or relinquishing, and their mental disability is likely to continue for so long a period that it would be detrimental to the child to delay adoption until restoration of the parent’s competency or capacity.

Additionally, if the parent’s parental rights have been terminated previously, their consent is not required.

Ultimately, when it comes to who must consent during the adoption process, the court will utilize the best interest of the child standard in order to make the final decision on whether or not to move forward with the adoption.

Does a Child Have a Say in Who Adopts Them?

A child can choose to be adopted, or a child can refuse to be adopted in certain cases. In terms of consent of the children being adopted, the majority of states, including the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands, require that an older child provide consent to their adoption.

Further, in about 24 states, including the District of Columbia and the Virgin Islands, a child who reaches the age of 14 or older must consent to the adoption, or else the adoption will not move forward.

Additionally, twenty States, including American Samoa and Guam, require a child that is at least age 12 to consent to their adoption. Further, five states, including the Northern Mariana Islands and Puerto Rico, mandate that a child aged 10 or older must consent to their adoption.

In nine states, the requirement that a child must consent to their adoption can be dispensed if the child lacks the mental capacity to consent. In 16 states, including the Northern Mariana Islands, the court has the discretion to dispense with the consent requirement if it is in the child’s best interests.

Colorado and New Mexico are two states that require that the child be given counseling before giving consent. In the state of Maryland, a court may grant an adoption only if the child to be adopted is represented by an attorney, which is typically an ad litem that is appointed by the court.

What if the Child Is Under 12 Years Old?

As noted above, there are some states that require that any child aged 10 or older must consent to their adoption. However, an adoption that is in the best interests of the child may ultimately proceed in most cases, so long as the court finds that it is in the best interests of the child for the adoption to be granted.

What Are the Requirements for Adopting a Child?

Whether or not an adoption is ultimately approved is dependent upon the prospective parent’s eligibility to adopt a child. As such, there are certain requirements for adopting a child. Eligibility laws vary by state, and if the adoption is from an international agency, the laws will also vary by country. Additionally, certain agencies may have their own set of eligibility criteria for the prospective parents to meet. The adopting party may be an individual or a married couple.

In general, any person may adopt a child as long as they meet the following general guidelines:

  • They are financially capable of supporting a child;
  • They have saved enough money to cover the cost of the adoption;
  • They are of legal age and are capable of making legal decisions;
  • They have a generally good background, such as no serious criminal record
    • It is important to note that prospective adoptive parents must typically submit a background check report to the court in which they are seeking the adoption;
  • The prospective adoptive parents have a home that is safe and clean in order to accommodate the needs of a child; and
  • They are in good health with a good life expectancy so as to reduce the chances of leaving the child without a parent as a minor.

What Steps Does the Adoption Process Consist Of?

The adoption process ultimately consists of obtaining a court’s approval to adopt a child and can be further broken down as:

  • A petition for adoption is filed first with a family court in the proper jurisdiction;
  • The prospective adoptive parents provide the required notice of the petition to all legally interested parties, such as the child’s biological parents; and
  • A hearing occurs in which the adoptive parents appear before a judge and plead their case for adoption approval.

Can Consent Be Revoked?

In most cases, consent to adoption may be revoked. However, there are certain time periods in which the revocation must be made. Once again, the exact laws regarding revocation will vary by state.

For example, in the state of Florida, in the case of a minor being adopted that is older than 6 months at the time of the execution of the consent, the consent to adoption is valid upon execution. However, the consent is subject to a 3‑day revocation period or may be revoked at any time prior to the placement of the minor with the prospective adoptive parents, whichever is later.

However, in states such as Montana, a relinquishment or consent may not be revoked if an order has been issued terminating the parental rights of the biological parent.

What Is Each State’s Time Frame for Revoking Adoption Consent?

Once again, each state will have different laws regarding the time frame for revoking adoption consent. The following is a non exhaustive list of state laws regarding revoking adoption consent:

  • Nevada: Consent by the mother to a specific adoptive placement cannot be revoked except when the adoptive family is found to be unsuitable, or the placement is in violation of the law;
  • North Carolina: A consent to the adoption of any infant who is in utero or any minor may be revoked within 7 days following the day on which it is executed. The individual who gave the consent may revoke it by giving written notice to the person specified in the consent.
    • Further, a consent shall be void if, before the entry of the adoption decree, the individual who executed the consent establishes by clear and convincing evidence that the consent was obtained by fraud or duress;
  • Oklahoma: Consent is final and, except for fraud or duress, may not be revoked for any reason except as otherwise authorized by law; and
  • Texas: Consent may be revoked at any time before an order granting the adoption of the child is rendered by filing a signed revocation.

Do I Need an Attorney for My Adoption Dispute?

Although many adoptions proceed without the need for an attorney, some adoption processes can become increasingly complex, especially when an adoption dispute arises.

As such, if you need or would like assistance with the adoption process, you should consult with a skilled and knowledgeable adoption lawyer. An experienced adoption attorney can provide you with legal advice specific to your state’s laws and represent you as needed should any disputes arise.

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