Consent to Adoption - West Virginia
Who Must Consent to an Adoption
Citation: Ann. Code §§ 48-22-301; 49-4-114
Consent to or relinquishment for adoption of a minor child is required of the following:
- The parents or surviving parent, whether adult or minor, of a marital child
- The outsider father of a marital child who has been adjudicated to be the father of the child or who has filed a paternity action that is pending at the time of the filing of the petition for adoption
- The birth mother, whether adult or minor, of a nonmarital child
- The determined father
If all persons entitled to parental rights of the child are deceased or have been deprived of the custody of the child by law, then consent or relinquishment is required of the legal guardian or of any other person having legal custody of the child at the time. If there is no legal guardian or any person who has legal custody of the child, then consent or relinquishment is required from some discreet and suitable person appointed by the court to act as the next friend of the child in the adoption proceedings.
Whenever a child welfare agency licensed to place children for adoption or the Department of Health and Human Resources has been given the permanent legal and physical custody of any child and the rights of the mother and the rights of the legal, determined, putative, outside, or unknown father of the child have been terminated by order of a court of competent jurisdiction or by a legally executed relinquishment of parental rights, the child welfare agency or the department may consent to the adoption of the child.
Consent of Child Being Adopted
Citation: Ann. Code § 48-22-301
If the child to be adopted is age 12 or older, the consent of the child is required to be given in the presence of a judge of a court of competent jurisdiction unless, for extraordinary cause, the requirement of such consent is waived by the court.
When Parental Consent is not Needed
Citation: Ann. Code § 48-22-301
Consent or relinquishment shall not be required of a parent or of any other person having custody of the child when any of the following applies:
- The person's parental rights have been terminated.
- The person has abandoned the child.
- The person is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent.
If the mother, legal father, or determined father is under disability, the court may order the adoption if it finds that any of the following applies:
- The parental rights of the person are terminated, abandoned, or permanently relinquished.
- The person is incurably insane.
- The disability arises solely because of age and an otherwise valid consent or relinquishment has been given.
When Consent Can Be Executed
Citation: Ann. Code § 48-22-302
No consent or relinquishment may be executed before the expiration of 72 hours after the birth of the child to be adopted.
How Consent Must Be Executed
Citation: Ann. Code §§ 48-22-302; 48-22-304
A consent or relinquishment executed by a parent or guardian must be signed and acknowledged in the presence of one of the following:
- A judge of a court of record
- A person whom a judge of a court of record designates to take consents or relinquishments
- A notary public
- A commissioned officer on active duty in the military of the United States if the person executing the consent or relinquishment is in military service
- An officer of the Foreign Service or a consular officer of the United States in another country if the person executing the consent or relinquishment is in that country
If a person who has executed a consent to or relinquishment for adoption is under age 18 at the time of the filing of the petition, and such minor parent is a resident of the State, the consent or relinquishment shall be specifically reviewed and approved by the court, and a guardian ad litem may be appointed to represent the interests of the minor parent. The guardian ad litem shall conduct a discreet inquiry regarding the consent or relinquishment given and may inquire of any person having knowledge of the consent or relinquishment. If the guardian ad litem finds reasonable cause to believe that the consent or relinquishment was obtained by fraud or duress, the court may request the minor parent to appear before the court or at a deposition, so that inquiry may be made regarding the circumstances surrounding the execution of the consent or relinquishment.
Revocation of Consent
Citation: Ann. Code §§ 48-22-303; 48-22-305
A consent or relinquishment may provide explicitly for its conditional revocation if any of the following applies:
- Another person whose consent or relinquishment is required does not execute the same within a specified period.
- A court determines not to terminate another person's parental relationship to the child.
- In a direct placement for adoption, a petition for adoption by a prospective adoptive parent, named or described in the consent, is denied or withdrawn.
Parental consent or relinquishment, whether given by an adult or minor, may be revoked only if any of the following applies:
- The person who executed the consent and the prospective adoptive parent named in the consent, or the agency in case of relinquishment, agree to its revocation prior to the entry of an adoption order.
- The person who executed the consent proves by clear and convincing evidence, in an action filed either within 6 months of the date of the execution of the consent or prior to the date an adoption order is final, whichever date is later, that the consent or relinquishment was obtained by fraud or duress.
- The person who executed the consent proves by a preponderance of the evidence, prior to the entry of an adoption order, that a condition allowing revocation as expressly set forth in the consent has occurred.
- The person who executed the consent proves by clear and convincing evidence, prior to the entry of an adoption order, that the consent or relinquishment does not comply with the requirements set forth in this article.