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Brooklyn Family Law, Blog

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October 20, 2014
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October 21, 2014
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Is Consent of the Biological Parent(s) Always Required in an Adoption?

There are circumstances when the consent of one, or both, parents are not necessary for an adoption to move forward. If one parent is deceased, obviously there is no need for their consent or consent from their family. There are certain quirks in the adoption laws. One of them is that for adoption purposes abandonment of a child is defined as no contact for six consecutive months. Where there is an abandonment by one or both parents, then the laws read that the abandoning parent’s, or parents’, consent is not needed for adoption of abandoned child or children. Payment of child support can be contact enough to avoid use of the abandonment provision.

Even in a case of abandonment under this provision of the adoption law, many Courts will still require the abandoning parent to be given notice and opportunity to be heard on the adoption. They may not show up for the first appearance on the adoption, or they may show up. Their failure to appear, after proof that they have been served with notice, will not affect the progress of the adoption. If they do appear, it may simply be to agree to the adoption, or it may mean that you will have to have a hearing in the adoption to prove abandonment and that adoption is in the child or children’s best interest if the abandoning parents holds the right to protest the adoption. Toward this end, it is always a good idea to have a current address of the parent or parents of the child to be adopted. If you do not, it will make the process a bit more difficult, but does not end the possibility of adoption.

Sadly, many of these cases of abandonment happen with parents that are addicted to drugs or alcohol or sex that simply forfeit the child in favor of following their particular addiction. Sometimes the addictions alone, should they go on long enough or be severe enough, can support an adoption without consent of the parent or parents. A long standing record of child abuse can serve as the basis for allowing children to be adopted without consent, or an extremely long absence with no contact can also avoid the need for consent based on abandonment, together with other requirements.

Sometimes children are simply given over to the County with the intent to give up all rights and obligations as the parents. Generally, parental consent is not required in these cases. If children are taken by the County and put into foster care, after a period of time in foster care and not being re-united with parents, the Courts will terminate parental rights, freeing the child or children for adoption. In these cases, no parental consent would be required. Mental illness of a parent may obviate the need for a consent to adoption. If the parent’s mental illness is so severe as to make it impossible for that parent to care for the child for the foreseeable future, that parent’s consent may not be required. The consideration is always the best interests of the child, whatever the circumstances involved, adoption included.

A person or couple can bring an action for adoption and litigate the best interests of the child or children being served by terminating the rights of the parents and allowing the adoption to happen. A court can order an adoption without consent of either parents when the right evidence is available to show the best interests of the child or children are served by the adoption and no contact with the birth parents.

There are also situations where there is no father named on the birth certificate of the child, and no one is being held out as the father. Though these cases can be a bit suspect because the Court does not want to believe that a mother does not know the father of their child, if no father is known, truly not known, then there is no one from whom to seek consent on the father’s side. This situation could arise when the child is a result of a rape, or it could occur for other reasons. These cases never feel quite right and there is always a concern that the father will find out the fact years later and attempt to undo the adoption. Whether he will be successful depends on too many factors to discuss here. Very important to remember in this situation is that putative fathers, those that have had contact, held themselves out as fathers and a list of other factors, may need to give consent or their rights may be limited to receiving notice of the adoption action without the power to stop the adoption or need for consent.

If you act for the purpose of trying to create this abandonment scenario, whereby you withhold contact with the child from the other parent, keep moving so the parent cannot find you, change your name so the other parent cannot find you and the child or other things of this nature, then the other parent has not abandoned the child merely because six months have passed without contact. Your actions cannot create the situation where the other parent does not have access for six months because that is not abandonment by the parent without the child. It is something else entirely that would generally be ill advised if you want to retain custody of your child.

Many people think of adoption as a simple process where everyone agrees and signs all of the papers necessary. Adoptions can be exactly this and are the bright spot in Family Law practice. This is how we hope all adoptions work out. Adding that sometimes a consent of a problem parent may not be needed in an adoption because of an abandonment may add to that belief that it all moves through smoothly very smoothly, without the consent. This is not always the case.

There are adoption cases that can be brought to force the adoption where there is no agreement or consent from anyone that is normally required to give consent. In these cases, the adoption must be in the best interests of the child or children. In these cases, you would be asking the Court to terminate the rights of the birth parents and allow the adoption all in the child’s or children’s best interest. There are fairly limited and radical circumstances in which you would want to bring an adoption as a litigation, knowing in advance that it will be a fight. But when it is needed to protect the children and is in their best interests, it is an avenue that must be considered to kill the need for consent from birth parents.

On these consent to adoption questions, there are many factors that a Court will take into account, so please only consider this an overview of issues and questions to discuss with your lawyer.