There are many things that biological parents should understand about adoption laws before completing an adoption. It is best that the biological parent(s) work with a knowledgeable adoption attorney. The adoptive parents are usually required to pay for an attorney to represent the interests of the biological parents. Adoptive parents may also pay for the birth mother’s expenses before and during the birth. While this article offers an overview, specific state laws differ, and it is important to understand the laws of your state.
Consent to Adoption
Unless the court has terminated the parental rights of the biological mother, she must consent to the adoption. No matter what has transpired in terms of costs paid or promises made, biological mothers have an absolute right to revoke consent up to a certain time.
For biological fathers, determining whether their consent is necessary for the adoption will involve a number of factors. If the father is unknown, their consent is unnecessary. As a practical matter, there would be no way to locate an anonymous person. If the biological father is known but has not expressed any interest in parenting the child (and is not married to the mother), as long as the father has not established a parenting role within a certain amount of time, his consent is unnecessary for the adoption. States vary in the length of time that the father must be out of contact with the child and whether the clock starts running during pregnancy or at birth. It is irrelevant when the father finds out about the pregnancy. If he finds out too late after the adoption has been completed, he is most likely out of options.
For an adoption to be legal, in most cases, BOTH birth parents must consent to it.
What constitutes establishing a “parental role” will be fact-specific, but a parental role can be established before birth by providing emotional and material support to the biological mother while she is pregnant. A parental role can be established after the birth by providing material and emotional support to the child and developing a relationship with them.
Contesting an Adoption
A contested adoption is when one of the biological parents does not consent to the adoption. Generally, this happens when a biological father does not want to consent to an adoption, but the biological mother does. The biological father will then step in to contest the adoption. In order to contest the adoption, the biological father must first prove that he is the biological father. Then, he must show that he is able and willing to take physical custody of the child.
When the biological father contests the adoption, the court will look at the situation and see if the biological father has complied with state laws that give him the right to contest the adoption. If he has been absent until then, he may not have the right to contest it. If he has complied with the laws of the state to establish a right (and ability) to parent, the court will stop the adoption proceeding and give the father custody of the child. If the biological father has not met the requirements to establish a parental relationship with the child, the judge may schedule a hearing to decide what would be in the best interests of the child. The judge may also grant the adoptive parents’ petition to terminate the biological father’s parental rights.
Notice is Required
The adoption process starts with notice, meaning that any person legally involved in the child’s life must be lawfully notified of the adoption. Notice is imperative to the right to contest an adoption.
Reclaiming a Child
Even after the adoption has been completed, birth parents have a certain amount of time during which they are able to revoke consent to the adoption. This essentially reverses the adoption, and the child is returned to the biological parent(s). States have different time periods in which biological parents can change their mind. These time periods range from hours to months. However, once that time period has passed, the adoption becomes irrevocable.