As a biological parent of a child, you might have had all of your rights terminated and you might have no rights at all. You may have the right to make decisions regarding the care and keeping of your child, so long as it does not jeopardize the health and safety of the child. Sometimes this includes the difficult decision to give your child up for adoption. You really need to talk to an attorney depending on where you are at to see if you have rights or not.
With respect to your emotional and financial well-being, however, you should never feel compelled to relinquish your parental rights without first understanding how that decision might affect you in the long run. Therefore, if you are thinking about giving up your child for adoption, it is important to know of the limits of your birth parent rights — the most drastic being the termination of parental rights.
Termination of Parental Rights in General
There are several grounds for termination of parental rights — both voluntary and involuntary. Generally, birth parents have the right to choose what is in the best interest of their children and this includes the difficult decision whether to give them up for adoption. On the one hand, when birth parents choose to offer their child for adoption they are voluntarily terminating their parental rights. Conversely, when birth parents have their parental rights terminated for them, this is known as an involuntary termination of the rights of birth parents.
Voluntary Termination and Consent
Before voluntary termination can take place, state laws require one or both birth parents to legally “consent” to the adoption. Consent occurs when birth parents legally agree (without coercion, threat, or force) to relinquish all rights and duties of a child to allow an adoption to take place.
Most states require consent to be in writing and done before a judge or other court-appointed person. This applies equally to biological mothers and biological fathers who have established paternity. Furthermore, many states have designed programs to help ease the transition for all parties involved including children, birth parents, and adoptive parents to prevent anxiety, trauma, coercion, or other negative psychological effects that may come during the adoption process.
If one or both parents are deceased or have lost their parental rights for other reasons, however, consent may be given by the following:
• A guardian of the child
• A court that has jurisdiction over the child
• An agency or person that has custody of the child
• A close relative of the child
Unlike voluntary termination, there are times when birth parents rights can be terminated involuntarily if certain conditions are met. For involuntary termination, most states look to the best interest of the child and determine whether specific reasons exist to end the biological parent-child relationship.
The most common grounds for involuntary termination of parental rights include:
• Severe child abuse or neglect of the child
• Mental illness or incapacity based on alcohol or drug use of the parent
• Conviction of a crime by the parent involving children
• Conviction of a crime by the parent requiring jail time beyond which time would negatively impact the child
Depending on the state, the exact moment that birth parents rights may be terminated can range anywhere from immediately after a child’s birth to up to 30 days thereafter (or more in limited cases.) Therefore, because terminating birth parent rights is a serious matter, most states have strict timing requirements that must be met before a birth parent’s rights can be terminated.
As a general rule, consent to adoption is irrevocable since consent is meant to be a lasting and binding agreement to help ensure a stable environment for the child. Some states do not allow birth parents to revoke their consent to adoption. Other states allow extremely limited situations for revoking consent to adoption usually before adoption has been finalized and may include the following circumstances:
• Fraud or coercion was involved
• The state allows a set period of time for revoking consent
• The state (or other governing body) determines that revocation is in the best interest of the child
• The birth parents and adoptive parents mutually agree to revocation
Birth Mother Rights after Child’s Adoption
Prior to an adoption being finalized by the court, the birth mother, or birth father, will retain the legal rights to their child. After the adoption process is finalized by a court, both birth parents lose all legal rights to their child. This means that a biological mother will not have the right to make important life decisions on behalf of her child, nor will she have the right to petition for custody or even visitation.
When an adoption is finalized by the courts, the birth parents are terminating all parental rights. Terminating all parental rights allows the adoptive parents to step in to become the child’s legally recognized parents. In order to complete the adoption process, birth parents must relinquish their parental rights.
Passing the Point of No Return for Birth Parents
Once the birth parents sign the consent to terminate parental rights, after the child is born, the ability to stop the adoption becomes much more limited. All states allow biological parents to freely change their mind after the child is born, but before the process is finalized by the court, even if an agreement was signed before the birth. Additionally, some states allow for the revocation of a birth parent’s consent to terminate parental rights signed after birth but before the adoption is finalized in certain specific situations. Some of those circumstances include:
• Birth parents that provided consent due to fraud
• Birth parents that provided consent due to duress, or coercion
• The court finds that revocation of the consent is in the best interest of the child
• Both birth and adoptive parents agree to the revocation of the consent
• The adoptive placement is not finalized with a specific family within a period of time
These circumstances are not only limited in their availability in each state, but also have very firm and often incredibly short deadlines. In some states, even if fraud, duress, or coercion was used to obtain the consent, a birth parent can be required to file a petition with the court within seven days. Once the time has passed for a birth parent to revoke their consent to terminate parental rights, the consent becomes irrevocable, meaning that there is no turning back.
Can Adoptive Parents Cut Off Access
While the current trend for adoptions is to allow open adoptions that encourage birth parents and adoptive parents and the children to maintain contact, there is not much a birth parent can do if the adoptive parents do not want them in their adopted child’s life. To protect against this, birth parents may wish to enter into an agreement with the adoptive parents allowing for such things as visitation or regular updates. These agreements can be wrought with pitfalls and should be considered carefully by both adoptive parents and birth parents before being entered into.
While states vary on this issue, courts, generally, will be unable to grant birth parents visitation after the adoption is finalized, unless a visitation agreement was approved by the court at the time of adoption. If an agreement for visitation was put in place at the time of the adoption, which courts may allow if the birth parent has a pre-existing relationship with the child, then a court may be able to enforce a visitation agreement. Without an agreement, adoptive parents are able to prevent birth parents from being a part of their child’s life and/or even visiting with their child.
Birth Father Legal Rights When Child Adopted Out by Birth Mother
Placing a child up for adoption without the full consent of both biological parents could lead to legal complications. If the father is not part of the process, he may need to contact the adoption agency to initiate his parental rights for the child.
The Adoption Triangle
There are situations where many parties involved in an adoption forget that the adoption includes three different sets of individuals. These are the birth mother, biological father and the adoptive parents. The legal issues arise when the biological father is not part of the process, has not been informed of the adoption decision or is not part of the consent for adoption with a person or couple outside of the biological family. In most states and circumstances, the birth father has the same exact rights as the birth mother. Without consent or discussing the matter with him, the adoption may not proceed.
The Rules of Adoption
Adoption usually occurs when both biological parents give up parental rights so that the child may live with another family. The matter usually progresses through multiple agencies and parties before the youth becomes an adoptive child to a family. While placing the young person up for adoption is possible, the birth mother must discuss the matter with the biological father. The rules regarding adoption change from state to state, and the laws in place may require more steps or additional paperwork than other locations. If the father refuses to give up parental rights, he may take custody if the mother cannot raise the child.
The Rights of the Father
In the states that require the permission of the birth father for a full and complete adoption process, the father has the option to either stop the adoption process completely or to take custody when the mother cannot or is not willing to keep the child. The agency seeking to place the child may need to finalize background checks to avoid liability in any possible cases where the biological father was not initially consulted about the adoption with the birth mother. In these situations, the agency may need to talk to and counsel the biological father about the procedure and any possible rights he has.
Complications with the Father
If the mother is unsure who the father is, she may need to contact all parties that may have an interest. If the father could take responsibility or custody of the child, this could stop any possibility of adoption. However, if no one is interested in taking part in the child’s life, then the mother may have full capability to finalize an adoption without the interference of the father. The laws and processes do change based on the state, but the mother still must do her due diligence and discover who the father is if she wants to transfer her parental rights over to an adoptive couple.
The Necessary Steps
When a birth father is known, the birth mother should contact him at some point before attempting to place a child with an adoptive family. The first step is to contact him with the information and the connection to the child. The next step is to discover if he has any objection to the adoption or if he wants some involvement and relationship with the youth. If there is any reason to fear the birth father with possible violence from the conception of the young person or subsequent birth, the mother has no obligation to inform him of anything in most states. The next step when the father does not claim his rights is to contact an adoption coordinator to help and assist with the possible options in the specific state of residence. If any other issues with housing, transportation and other matters are necessary, this agent or agency could help. If the father either wants involvement with the adoption or with the life of the child, the adoption may halt at this point. When counseling is necessary, the biological parents may stop or continue with the adoption at any point.
Legal Support for the Birth Father
When the biological father is not violent, he usually has some rights to acquire custody or to have involvement in the life of the child. This is even sometimes possible after adoption, and hiring a lawyer is important to protect his rights.
Utah, like all states, regulates adoption, including who can adopt, who can be adopted, and other requirements to legally adopt another person. Utah courts look to the “best interests of the child” in adoptions, similar to the way they do in child custody cases. In addition, Utah must follow any applicable federal laws, such as the Indian Child Welfare Act.
Code Sections Utah Code Title 78B, Chapter 6, Part 1: Utah Adoption Act
Who Can Be Adopted Any child or adult can be adopted, if eligible and the Utah adoption laws are followed. If the adopting person is not at least 10 years older than the child, he or she can’t adopt. However, if a married couple is adopting only one of the spouses must be at least 10 years older than the adoptee.
Consent of Child: A child who’s at least 12 years old and any adults must consent to adoption, if they have the mental capacity to consent.
Who Can Adopt: Any adult can adopt, but must have the consent of his or her spouse if married. Also, a single person who is cohabitating and involved in a sexual relationship without being married may not adopt. This may have been developed to prevent same-sex couples from adopting (although it doesn’t necessarily prevent single gay or lesbian persons from adopting). However, now same-sex marriage is legal in Utah. This law is written to say the “most beneficial family structure” for children is one with one man and one woman who are married, but there are many reasons this may not be the case and the law is flexible enough to understand there aren’t always qualified couples available for all the children who’d like to be adopted.
Home Residency Required Prior to Finalization of Adoption: The home residency requirement or amount of time a child must live in the home before the adoption is finalized is usually 6 months. However, for stepparents adopting their spouse’s children, the child must live with the stepparent for at least one year.
State Agency: In Utah, the state agency that handles foster care and adoptions of children who can’t be returned to their families of origin is Child and Family Services.
State Court: The adoption petition can be filed in your local District Court or in the Juvenile Court for children who were abused or neglect or had the parental rights of the birth parent terminated in the juvenile court.
Statute of Limitations to Challenge: An adoption can’t be contested after entry of final adoption decree, even in the case of fraudulent misrepresentation connected to the adoption. However, a person can seek civil or criminal penalties for adoption fraud. Whatever the individual circumstances that brought you to consider adoption are, it’s a good idea to speak with an experienced Utah adoption lawyer to ensure the process goes as smoothly as possible. Whether stepparent, international, or foster care adoption is the best choice for you, a lawyer who regularly works in this area of the law can tell you more about your options.
Free Adoption Consultation
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