- Written by Kevin Hickey
Adoption can be a scary process for all parties involved. To help you with that, I thought I would go through some things you may encounter during the process. Before an Arkansas adoption can be final, there must be legal consent by the birth parents or other parties based upon the circumstances. Consent happens when a birth parent or other legal guardian voluntarily relinquishes all rights and duties with respect to a child, so that the child may be placed with an adoptive family.
The courts ultimately want the best outcome for the best interests of the child in any process. They have outlaid guidelines as to who must consent and when someone doesn’t have the right to consent. Those that must consent:
- The birth mother
- The birth father, unless he has failed to establish legal paternity or is found to have abandoned or neglected the child or to be an unfit parent or fails to respond to a notice of an adoption proceeding. Situations where the birth father is required to give consent are:
- He was married to the mother at the time the child was conceived or at any time thereafter;
- He adopted the child;
- He has physical custody of the minor at the time the petition for adoption is filed;
- He has a written order granting him legal custody of the minor at the time the petition for adoption is filed;
- A court has adjudicated him to be the legal father prior to the time the petition for adoption is filed;
- He proves a significant custodial, personal, or financial relationship existed with the child before the petition for adoption is filed; or
- He has acknowledged paternity under 9-10-120(a). Check out my past blog about acknowledging paternity.
- Anyone that has legal custody of the child
- The guardian or guardian ad litem
- If a parent does not have legal rights, the court having jurisdiction over the child may give consent. Circumstances that may lead to the courts having legal rights to a child are:
- Parental rights have been terminated;
- The child has been abandoned;
- The parent has been convicted of specific crimes again the other parent or the child; or
- The parent has failed to support or establish a significant relationship with the child.
- The parent is mentally incompetent or unfit
- The spouse of the minor to be adopted
- A child aged 12 or older must consent to his or her own adoption unless the court decides it is within the child’s best interests.
Consent is not needed for the following circumstances:
- A parent has deserted a child without offering a means of identification or who has abandoned the child.
- A parent of a child in the custody of another parent if he or she has failed significantly or without justifiable cause to communicate with the child or to provide for care and support of the child for at least one year.
- A parent who has relinquished the right to consent or whose rights have been terminated.
- A parent judicially declared incompetent or mentally unstable by the court.
- Any parent of the adopted person if the adopted person is an adult of sound mind.
- Any legal guardian, other than a parent, that has failed to respond in writing to a request for consent for a period of 60 days or if found by the court to be withholding his or her consent unreasonably.
- The spouse of the adopted person if the failure of the spouse to consent is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances proving an unreasonable withholding of consent.
- A putative father (a man whose legal relationship to a child has not been established, but he claims to be the father or who is alleged to be the father of a child born to a woman whom he was not married to at the time of the child’s birth) who signed an acknowledgment of paternity or is listed on the Putative Father Registry but who failed to establish a significant custodial, personal or financial relationship with the juvenile prior to the time the petition for adoption is filed.
Consent to adoption is regulated by state statutes, not federal laws. Every state differs in how it regulates consent. Overall, the regulations are designed to ensure protection for all involved in order to aid in avoiding any future issues or detrimental harm to the child. Those involved are:
- To prevent unnecessary and traumatic separations between the child and his or her adult caregivers
- Birth parents to prevent uninformed, rushed or coerced decisions
- Adoptive parents to ensure the legality of the adoption
Consent may be revoked prior to the entry of the final adoption decree, if:
- Consent was obtained by fraud, duress or coercion
- The birth parent is allowed to withdraw consent within 10 days of giving it
- If revocation is in the best interests of the child
- The birth parents adoptive parents mutually agree to the withdrawal of consent
- An adoptive placement is not finalized with a specific family or within a specified period of time
If you are a party on either side of the adoption process, it is best that you seek your own legal counsel, because in most cases once consent becomes final and irrevocable once the court issues a final decree of adoption. Kevin Hickey Law Partners can aid you throughout the process. Give us a call today.