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Adopting Children when the Parents do not Consent

Adoptions are joyous and pleasant events for both the petitioners and the child involved. Those who file a petition for adoption are seeking to become legal parents of a child, sometimes for the first time.  However, not every adoption case is uncontested, and on rare occasions, a parent or both parents will refuse to consent to the adoption petition and ask the judge to deny the adoption.

Consent is the most important issue in any adoption case. You might even conclude, with a fair amount of accuracy, that it is the only issue since the adoption cannot be granted without consent in one form or another. However, a common misconception is that the parents must express their consent through a signed document for the adoption to be granted. This is not true.

In order for an adoption to be granted in Florida or in Alabama, the parents must consent to the adoption.   The easiest and simplest way to accomplish this legal requirement is through a signed and notarized consent to adoption. The standard consent to adoption form advises the parent of their rights in the adoption case, including their right not to sign the consent, their right to legal representation, that they have not received anything to coerce them into signing the consent, that they have received at least two copies of the document, their right to withdraw the consent within a specified time and other rights that are protected under the law.   Parents enjoy fundamental rights to their children, but those rights can and often are waived. The written adoption consent form is the means by which a parent can waive their legal rights to their child and facilitate an uncontested adoption. However, in some cases, a child’s parents are either not available to determine whether they will consent or they openly dispute the adoption petition and ask the court to deny the petition.

Where the parents of a child refuse to consent to an adoption petition, the petition may nevertheless be granted if the parents have implied their consent by failing to protect their rights to a parent-child relationship. Both Florida and Alabama have enacted statutes which allow a child to be adopted even if the parents refuse to consent to the petition if the facts meet certain criteria, which may be proven under the totality of circumstances, including:

  • failing to visit with the child for a significant period of time;
  • failing to financially support the child;
  • failing to communicate with the child, in-person or by telephone;
  • leaving the child with others without provision for their support or identification;
  • failing to emotionally support the child;
  • failing to respond to a properly served adoption petition within the legally required period of time;
  • committing an act of abuse against the child;
  • any other set of continuing acts or omissions that result in a waiver of the parent-child relationship.

Alabama analyzes implied consent under a six-month standard to determine whether a parent has maintained a significant relationship with the child.  Florida utilizes a broader totality of the circumstances test with respect to the time needed for a legal abandonment, and the consequent termination of parental rights.  In either event, the issue is whether or not the parent has failed to protect their relationship with the child and thereby forfeited their rights to the other was protected parent-child relationship.

Many attorneys who are new to the area of adoption law are quick to confuse an adoption case with a custody dispute. Although both forms of cases involve children, and ultimately the placement of children, these are two distinct areas of family law.  Indeed, it has been my experience that many attorneys who advertise as family law attorneys are simply divorce attorneys with little or no experience in adoption law. The scope of a contested adoption trial is very narrow when compared to that of a custody trial. Implied consent is not a general “best interests” analysis, it is an analysis of the resulting effect of a parents action or lack of action upon the parent-child relationship. Where a court determines that a parent has failed to protect their relationship with the child, it will not examine issues like adequate housing, criminal background, drug abuse or other issues that are common in a general best interests analysis. Obviously, these factual issues will  sometimes play a large role in a parent’s willingness or ability to maintain a significant relationship with their child, but they are essentially irrelevant in an implied consent or abandonment adoption case.

Most of the clients I have represented in contested adoption cases already have a child in their physical custody, and the parents have encountered life circumstances that prevented them from being able to visit with the child for a very long time. Rarely are the particular circumstances that led to their absence worthy of any respect (drugs, apathy etc.), but the parent is now faced with a legal reality that they have forfeited something very important. Therefore, in order to preserve a sense of self-respect, the parent will often refuse to consent to an adoption and force a judge to grant the adoption over the parents objection.  Every parent has a right to their day in court but judges can and often do grant petitions for adoption even in the absence of expressed parental consent.

If you have a child in your custody and you believe that the child has come to see you as his or her parent, and those circumstances are unlikely to change, you may consider an adoption to provide the child with stability and certainty for their future. And adoption is not a temporary option or measure, it is a permanent termination of the parents rights when a parent has failed to protect those rights.  It is a serious and often drastic measure to take, but it may be exactly what a particular child needs to better their circumstances and prosper in life.

Andrew D. Wheeler

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