Perhaps you are a father, and someone is seeking to adopt your child over your objection. Or, perhaps you are seeking to adopt a child without the father’s consent. You likely wonder: Can a child be adopted without the father’s consent? What rights do fathers have in adoption? This post will tell when a child may be adopted without a father’s consent. I’ll also discuss a father’s adoption rights, and what a father may do if he wants to object to an adoption.
When a child may be adopted without a father’s consent
If a prospective adoptive parent wants to adopt a child without a father’s consent, the adoptive parent must prove that:
· The father has not paid child support for a period of twelve consecutive months out of the last fourteen months immediately before the adoption petition is filed. If there is a court order for child support, the father must have paid child support “in substantial compliance” with the order. If there is no court order for child support, the father must have paid child support consistent with his “financial ability.”
· The child is placed for adoption within ninety days after birth, and the father fails to show that he has exercised parental rights or duties toward the minor. If he fails to contribute to the support of the mother during her pregnancy, that can be grounds to adopt the child without the father’s consent.
· The child is placed for adoption within fourteen months after birth, and the father fails to show that he has exercised parental rights or duties toward the child. In this case, the court may consider the father’s failure to support the mother during her pregnancy. However, if the child is placed for adoption more than ninety days after birth, failure to support the mother during pregnancy does not, by itself, constitute grounds to adopt the child without the father’s consent.
· The father waives his right to notice of the adoption hearing;
· The father has received notice of the hearing, and does not appear;
· The father has abandoned the minor;
· The father has not “established and/or maintained a substantial and positive relationship with” the child for a period of twelve consecutive months out of the last fourteen months before the filing of the adoption petition;
· The father has been convicted of:
o Child abuse
o Enabling child abuse
o Child neglect
o Enabling child neglect
o Child sexual abuse
o Enabling child sexual abuse
o Child sexual exploitation
o Enabling child sexual exploitation
o Permitting or consenting to the participation of a minor in child pornography (if the father had custody or guardianship of the minor)
o Rape
o Lewd or indecent proposals or acts to a child under sixteen
o Causing the death of a sibling of the child as a result of physical or sexual abuse or chronic neglect of the sibling.
· The father has physically or sexually abused the child or a sibling of the child, or failed to protect the child from physical or sexual abuse, and the abuse is:
o Heinous and shocking to the court, or
o After a previous finding that the father has physically or sexually abused the child or a sibling of the child, or failed to protect the child from physical or sexual abuse
· The father has been sentenced to more than ten years in prison, and continuing parental rights would result in harm to the minor;
· The father has a mental illness or mental deficiency, and
o The mental illness renders the parent incapable of adequately and appropriately exercising parental rights, duties, and responsibilities, and
o The continuation of parental rights would result in harm or threatened harm to the minor, and
o The mental illness or deficiency will not respond to treatment, therapy, or medication, and “competent medical opinion” states that the condition will not improve
· The father has permanently relinquished parental rights;
· The father’s parental relationship to the minor has been legally terminated, or legally determined not to exist;
· The father is deceased;
· The putative father fails to prove that he is the father;
· The father has placed the child with a licensed childcare institution or child-placing agency, and, for twelve consecutive months out of the last fourteen months before the filing of the adoption petition, the father has not complied with a written plan of care. Failure to comply with a written plan of care may only be grounds for adoption without consent if the court determined that the plan of care is “reasonable,” and that the plan of care contained a written notice that failure to comply may be grounds for adoption without consent.
Procedures for adopting a child without the father’s consent
Before a parent may adopt a child without the father’s consent, the court must hold a hearing. The father must be served with notice of the hearing at least fifteen days before the hearing occurs. The notice must say that if the father does not appear at the hearing, the court may order that the child be adopted without the father’s consent. If the adoptive parents can’t find the father, the court may allow the adoptive parents to give notice by publication in a newspaper in the county where the hearing takes place.
If the father does not appear at the hearing, the court may order that the child be adopted without the father’s consent. If “unavoidable circumstances” prevented the father from appearing, then within ten days after the hearing, the father may file a motion asking the judge to set aside the order allowing adoption. The father must prove by “clear and convincing evidence” that his failure to appear was due to unavoidable circumstances.
If the father appears at the hearing, he has the right to an attorney. If the father cannot afford an attorney, the court must appoint an attorney. At the hearing, the prospective adoptive parent has the burden of proving that the child is eligible for adoption without the father’s consent. If the court allows the child to be adopted without the father’s consent, the father may appeal to the Oklahoma Supreme Court. To read how the appeals process works, click here.
If the child is Indian
If the child is Indian, then both the federal and state Indian Child Welfare Acts (ICWA) apply. Under ICWA, a child is “Indian” if the child is 1) a member of an Indian tribe, or 2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. A child can be “Indian” for ICWA purposes even if the child does not have a CDIB card.
The following special rules that apply if a child is Indian:
· Notice of the proceeding must be given to the Bureau of Indian Affairs, and to any Indian tribe that is or may be the child’s tribe.
· If either parent, the child’s Indian custodian, or the child’s tribe requests, the court must transfer the case to the tribal court of the Indian child’s tribe.
· Before the court terminates parental rights, the adoptive parent must prove to the court that “active efforts” have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that these efforts have been unsuccessful.
· Before the court terminates parental rights, the adoptive parents must prove, beyond a reasonable doubt, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The parent must put on testimony of expert witnesses.
· If a parent consents to an adoption of an Indian child, the parent must appear in person before a judge, and execute written consent. (This is different from adoption of a non-Indian child, where the father may execute written consent to adoption outside the presence of the judge). If the parent does not speak English, the judge must certify that a full explanation of the consent and the parent’s rights was interpreted to the parent in a language the parent could understand. A parent may not consent to adoption before the birth, or within ten days after the birth, of an Indian child. A parent may withdraw consent to adoption of an Indian child at any time before the final decree of adoption.
· There shall be a preference for placing an Indian child 1) with a member of the child’s extended family, 2) with other members of the child’s tribe, or 3) with another Indian family.
To read the federal Indian Child Welfare Act, click here. To read the Oklahoma Indian Child Welfare Act, click here.
Do you still have questions about adoption?
Adopting a child can be one of the most joyous occasions in life. Unfortunately, adoption laws and procedures can be extremely complex. The Persaud Law Office has represented both adoptive parents, as well as biological parents contesting the adoption of their child. If you would like us to represent you, give us a call today.
Comments