Consent to Adoption - California
Who Must Consent to an Adoption
Citation: Fam. Code §§ 8603; 8604; 8605
Consent is required from the following persons:
- The birth parents if living
- The parent having custody if the other parent fails to do the following:
- To communicate with and support the child
- To respond to notice of adoption
- The spouse of the adopting parent if the adopting parent is married
A child not having a presumed father under § 7611 may not be adopted without the consent of the child's mother, if living.
Consent of Child Being Adopted
Citation: Fam. Code § 8602
A child who is age 12 or older must consent to the adoption.
When Parental Consent is not Needed
Citation: Fam. Code §§ 8603; 8604; 8606
The court may dispense with the consent of a spouse who cannot be located after diligent search or a spouse determined by the court to lack the capacity to consent.
The consent of a presumed father is not required for the child's adoption unless he became a presumed father before the mother's relinquishment, before consent becomes irrevocable, or before the mother's parental rights have been terminated.
The consent of a noncustodial parent is not required if the parent willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so for a period of 1 year. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.
The consent of a birth parent is not necessary when the birth parent has done the following:
- Been judicially deprived of the custody and control of the child
- Surrendered the right to the custody and control of the child voluntarily
- Deserted the child without provision for identification of the child
- Relinquished the child for adoption as provided in § 8700
- Relinquished the child for adoption to a licensed or authorized child-placing agency in another jurisdiction
When Consent Can Be Executed
Citation: Fam. Code §§ 8801.3; 8606.5
In a direct placement, consent may only take place after the discharge of the birth mother from the hospital. If the mother is required to be hospitalized longer than the child, consent may be given with verification of competency from her physician.
In the case of an Indian child, consent cannot be executed until at least 10 days after the child's birth.
How Consent Must Be Executed
Citation: Fam. Code §§ 8801.3; 8814; 8700; 8606.5
In a direct placement, consent must take place in the presence of an adoption service provider or other delegated agent who has advised the parents of their rights. In an agency adoption, a form is signed before two witnesses and acknowledged before an official of the agency.
Either birth parent may relinquish a child for adoption to the Department of Social Services, a county adoption agency, or a licensed adoption agency by a written statement signed before two subscribing witnesses and acknowledged before an authorized official of the department or agency.
A relinquishing parent who is a minor has the right to relinquish his or her child for adoption, and the relinquishment is not subject to revocation by reason of the minority, or because the parent or guardian of the minor parent was not served with notice of the relinquishment, unless the relinquishing minor parent has previously provided written authorization to serve the minor's parent or guardian with that notice.
The relinquishment shall be signed before a representative of a licensed agency that signifies the willingness of the agency to accept the relinquishment. The relinquishment has no effect until a certified copy is sent to and filed with the department. The agency shall inform the birth parent that during this time period he or she may request that the relinquishment be withdrawn and that, if that request is made, the relinquishment shall be withdrawn.
Consent to adoption given by an Indian child's parent is not valid unless both of the following occur:
- The consent is executed in writing at least 10 days after the child's birth and recorded before a judge.
- The judge certifies that the terms and consequences of the consent were fully explained in detail in English and were fully understood by the parent or that they were interpreted into a language that the parent understood.
Revocation of Consent
Citation: Fam. Code §§ 8814.5; 8815; 8700; 8606.5
In a direct placement, after consent has been given, the parents have 30 days to submit a signed revocation and request the return of the child or sign a waiver of the right to revoke consent. Once the revocable consent to adoption has become permanent, the consent to the adoption may not be withdrawn. Before the time when the revocable consent becomes permanent, the birth parent(s) may request return of the child. In that case, the child shall immediately be returned to the requesting birth parent unless a court orders otherwise.
In an agency adoption, consent is final and may only be rescinded by mutual consent unless the birth parent has specified an adoptive parent and that placement is not finalized; then the parent has 30 days to rescind.
The parent of an Indian child may withdraw consent to adoption for any reason and at any time prior to the entry of a final decree of adoption, and the child shall be returned to the parent.
After the entry of a final decree of adoption of an Indian child, the Indian child's parent may withdraw consent to the adoption upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate that decree and return the child to the parent; however, no adoption that has been effective for at least 2 years may be invalidated unless otherwise permitted under State law.