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Adoption and the Birthparent Consent and Revocation
December 12, 2011

Are you a prospective adoptive parent considering or proceeding with a domestic or private placement adoption? If you are, chances are that you have already experienced a number of conflicting emotions. The adoption process can prove to be one of the most exciting, rewarding and fulfilling experiences of your life, while at the same time evoking some fear and angst.

On the minds of many (if not all!) prospective adoptive parents is the dreaded “revocation of consent.” Of course, this is also a topic of interest to most birth parents considering the placement of their child for adoption. Before considering adoption as an option for you, either as a prospective adoptive parent or birth parent, it is important to know the laws regulating the placement and subsequent revocation of consent in an adoption setting.

This blog post is intended to provide you with an initial understanding of the law so that you can proceed with your adoption armed with knowledge and information and thereby alleviate any unnecessary anxiety that you may feel.

In New York State, the consent of both birthparents, or the sole surviving birthparent, is required when a child is conceived and/or born in wedlock. This applies even when the birthparent(s) is/are under the age of eighteen.

Of course, the consent of the birthmother is required when the child is born out of wedlock and again, this applies no matter what the age of the birthmother. Related to this issue is the topic of the biological father’s rights when the adoptive child is born out of wedlock. Oftentimes, for a number of reasons, the birthmother does not or cannot identify the birthfather. If the birthfather has maintained substantial and consistent contact with the child (i.e. the birthfather paid voluntary child support and either visited the child monthly, if able to do so, or maintained regular communications with the child or person/agency having custody of the child), their consent will be required when the child has been placed for adoption more than six months after his or her birth. Basically, there needs to be actual evidence of the birthfather’s intent to maintain a relationship with the child, not just his alleged intent.

As the law stands today, a birthfather can “block” an adoption where the child has been placed for adoption less than six months after his or her birth. This is possible as long as the birthfather is actually willing to assume custody of the child, is able to do so, and his involvement is not simply a means of blocking the adoption from proceeding. The birthfather must also take steps to toward parental responsibility within six months of the child’s placement. The Courts will determine and consider whether the birthfather is an appropriate or fit parent and whether he has effectually waived or abandoned his rights as the father.
If the adoptive child is over the age of fourteen, then the adoptive child must provide his or her consent to the adoption and no other person’s consent will be required. In some situations, the consent of any other person or agency having custody over the adoptive child may also be required.

There are a few situations in which a birthparent’s consent is not required. These situations involve the birthparent’s abandonment or surrender of the child or in situations involving an involuntary guardianship, mental illness or mental retardation.

CONSENTS

There are two kinds of consents that can be signed in a domestic private adoption. The first is known as a Judicial Consent. A Judicial Consent is signed in the presence of the Judge or Surrogate which has jurisdiction over the adoption proceeding. A Judicial Consent is preferred by most prospective adoptive parents as this consent is final (unless fraud, threat or coercion can be proven).

The second type of consent that may be signed is the Extra-Judicial Consent. An Extra-Judicial Consent is signed by the birthparent(s) at some point after the birth of the child. Although there is no law regulating how soon after the birth of the child such a consent may be signed, it is important to be certain that the birthmother is not on any medications or in any pain at the time of her signature. It is often suggested that the birthmother wait at least 24 hours before signing the Extra-Judicial Consent.

An Extra-Judicial Consent is revocable by the birth parents within 45 days after signing. In the event that a birthparent wishes to revoke this, he or she must do so in writing to the Court in which the adoption proceeding will be held. The adoptive parents will then need to decide if they will oppose the birthparents’ revocation. Should the adoptive parents contest the revocation of consent, a hearing will be held to determine the best interest of the child. It is important to note that neither the birthparents nor the adoptive parents will have superior rights over the other in this situation. It is also important to note that an Extra-Judicial Consent can be re-affirmed before the Judge and thereby become irrevocable.

It goes without saying that most prospective adoptive parents and birthparents “do their homework” before diving into their search for a child or placing their child for adoption. The laws regarding adoption are not always simple and straightforward and parents inevitably develop many questions and are always encouraged to seek the advice of an attorney.

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