In Oklahoma, a child may be adopted with the parents’ consent. Generally, both parents must consent to the adoption, unless one parent is deceased or has had his/her parental rights terminated. If the child is in the custody of a guardian, child-placing agency, or the Department of Human Services (DHS), then the guardian, child-placing agency or DHS must consent. If the child is twelve or over, the child must consent unless the judge finds that it is not in the child’s best interests to require the child’s consent.
There are, however, specific procedural rules that describe how consent must be given to be legally valid. In this post, I will discuss the proper means of giving consent. (To see when it is permissible to adopt a child without a parent’s consent, read my post here. Although that post focuses on adoption without a father’s consent, most of the rules are the same for an adoption without a mother’s consent.)
Whose consent is necessary?
In general, both parents must consent to an adoption. Only one parent’s consent is necessary if:
· The other parent is deceased, or
· The other parent’s rights have been terminated.
If the child has a legal guardian, and both parents are deceased or have had their rights terminated, then the legal guardian’s consent is necessary.
If the child’s parents have relinquished the child to a licensed child-placing agency, then the consent of the child-placing agency is necessary.
If both parents’ rights have been terminated, and another person has legal custody of the child, then the consent of the person who has legal custody of the child is necessary.
If the child is in the custody of the Department of Human Services (DHS) then consent of DHS is necessary.
If the child being adopted is age twelve or over, the child’s consent to the adoption is necessary, unless the judge rules that it is not in the best interest of the child to require the child’s consent.
When must consent be given?
The mother may not give consent to adoption before the minor is born.
If the child is born in wedlock, the father may not give consent before the minor is born.
If the child is born out of wedlock, the father or putative father may consent to the adoption before or after the minor is born.
A legal guardian or other person having legal custody of a child may consent to adoption at any time after the court allows them to consent.
A child-placing agency may consent to an adoption at any time at or before the hearing on the petition for adoption.
A child being adopted, who is over twelve or older, may consent to the adoption at any time at or before the hearing on the petition.
How may consent be given?
There are different rules for mothers and fathers.
How a mother may give consent:
She must sign in writing, in front of a judge of a district court of Oklahoma, and a court reporter must record her consent. The consent form must say:
· The date, place, and time the consent is executed
· The mother’s name and date of birth
· The mother’s mailing address, telephone number, and social security number
· Instructions as to how the consent may be revoked
· That the mother understands that after the consent is executed, it may not be revoked except for fraud or duress, and except as authorized by the Oklahoma Adoption Code
· That the mother understands that she still must support the child until the adoption is completed
· That the mother has not received or been promised any money or anything of value in exchange for giving consent, except as authorized by law
· Whether the mother, or the minor, is eligible for membership in any federally-recognized Indian tribe
· That after the child becomes an adult, the child may obtain his/her original birth certificate, unless affidavits of nondisclosure have been filed
The judge must also sign the consent form.
If the mother lives outside of Oklahoma, she may execute her consent in accordance with the law of the state where she resides.
If the mother is residing outside the United States, she may execute consent before a government official in the country where she resides. The government official must be authorized to administer oaths. If that country’s government does not involve itself in adoption matters, the mother may give her consent before an officer of the Judge Advocate General’s office of the U.S. Armed Services, or an office of the U.S. Embassy. If the mother is a member of the U.S. Armed Services stationed abroad, she may give her consent before an officer of the Judge Advocate General’s office of the U.S. Armed Services, or any legal officer who has the authority to administer oaths.
If the consent is not in English, it must be translated, and the translator must file both the original and the English translation. The translator must swear that it is a true and correct translation.
How a father may give consent
The father may give consent in the same manner as the mother. However, the father does not have to give consent before a judge. If the father consents, and does not give consent before a judge, he must sign a written document that contains:
· The date, place, and time consent is given
· The father’s name, mailing address, date of birth, and social security number
· A statement that the father knows that he may revoke his consent for any reason within fifteen days after he signs it, but that after fifteen days, he may only revoke his consent is accordance with the Oklahoma Adoption Code
· A statement that the father is represented by an attorney, or has waived his right to an attorney
· A statement that the father knows he still may have to pay child support until the adoption is completed
· A statement that the father is not a member of a federally-recognized Indian tribe, and that the minor is not, through him, eligible for membership in a federally-recognized tribe
· A statement that the father believes that the adoption is in the child’s best interests.
· A statement that after the child becomes an adult, the child may obtain his/her original birth certificate, unless affidavits of nondisclosure have been filed
· A statement that the father has not received or been promised any money or any thing of value in exchange for giving consent, except as authorized by law
· A statement that the father is not under the influence of any alcohol, medication, or other substance that affects his competence when he signed the consent.
Special Rules Apply if the Parent is Under Sixteen and the Child is Born Out of Wedlock
If a parent is under sixteen and the child is born out of wedlock, then the minor parent must give consent before a judge of the district court. In addition, both parents of the minor parent must give written consent. If one parent is deceased, then only the written consent of the living parent is necessary. If the parents are divorced, then the parent who has custody of the minor parent must give written consent. If the child has a legal guardian, the legal guardian must give written consent. If both of the minor parent’s parents are deceased, then the person having physical custody of the minor parent may give written consent.
If none of these persons give written consent, then the court must send notice to all persons whose consent is required, directing them to appear at a show cause hearing. If they do not appear, or if they “unreasonably withhold” consent, then the court may proceed with the adoption.
If the parent is under sixteen and the child is born in wedlock, then the minor parent may give consent, and no consent is needed from the minor parent’s parents or guardian.
Special Rules Apply if the Child is Indian
If the child is Indian, then the federal Indian Child Welfare Act (ICWA) applies. Under ICWA, if a parent or “Indian custodian” of a child consents to an adoption, the consent must be in writing, and recorded before a judge. The judge must certify that the parent or Indian custodian understood the terms of the consent, and that the terms of the consent were explained to the parent in English or in a language that the parent or Indian custodian understood. The consent is not valid unless the parent or Indian custodian gives consent later than ten days after the birth of the child.
This law applies equally to both mothers and fathers. Also, under ICWA, “parent” means any Indian person who has legally adopted an Indian child, including adoptions under tribal law or custom. Note also, that this law applies to “Indian custodians”. ICWA defines “Indian custodian” as “any Indian person who has legal custody of any Indian child under tribal law or custom or state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.”
ICWA applies to any “Indian child.” ICWA defines a child as “Indian” if the child is a member of a federally-recognized tribe, or is eligible for membership in a federally-recognized tribe and is the child of a member of a federally-recognized tribe. Thus, even if a child does not have a CDIB card, the child may still be classified as “Indian” under ICWA. I’ve had prospective adoptive parents ask me, “But the child does not have a CDIB card, so why should ICWA apply?” The fact that a child doesn’t have a CDIB card doesn’t matter under ICWA.
How may a parent revoke consent?
If a father gives consent outside of court, he may revoke his consent any time within fifteen days.
Otherwise, a parent who has given consent to an adoption may only revoke consent if:
· No one filed a petition to adopt the child within nine months after the parent gave consent, or
· The other parent did not consent to the adoption, or a court decided not to terminate the other parent’s rights
· The “consenting” parent proves that consent was obtained by fraud or duress. If a parent wants to withdraw consent on the grounds of fraud or duress, he or she must withdraw consent before the judge signs the decree of adoption, or within three months after the fraud or duress, whichever is later.
If the child is Indian, then, under ICWA, a parent may withdraw consent for any reason, at any time before the judge signs the final decree of adoption.
If a judge signs a final decree of adoption, a parent may appeal the case to the state Supreme Court. The parent must file the appeal within ten days after the judge signs the decree. To read how the appeals process works, click here.
Unless the parent can prove that consent was obtained by fraud or duress, a parent may not set aside an adoption decree more than three months after the judge signs the decree.
Do you have questions about consenting to an adoption? Contact the Persaud Law Office.
Perhaps someone has asked you to consent to an adoption, and you want to know your rights. Or perhaps you have consented to an adoption, and you want to revoke your consent. Or perhaps you are an adoptive parent, and the biological parent is trying to revoke her consent. In any case, you might find it useful to consult an attorney. If you’re the biological parent, do have the right to an attorney at any time during an adoption case.
The Persaud Law Office has represented both adoptive parents and biological parents in adoption cases. If you would like help with an adoption matter, feel free to contact our office today.
Photo courtesy of https://www.flickr.com/photos/bcgovphotos/30393671890. Licensed under Creative Commons 2.0.
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