CONSENT TO ADOPTION IN NEBRASKA

Current Through March 2017

WHO MUST CONSENT TO AN ADOPTION

Citation: Rev. Stat. §§ 43-104; 43-105

Except as otherwise provided in the Nebraska Indian Child Welfare Act, no adoption shall be decreed unless written consents are executed by:

• Any district court, county court, or separate juvenile court having jurisdiction of the custody of a minor child by virtue of proceedings that occurred in any court in Nebraska or by virtue of the Uniform Child Custody Jurisdiction and Enforcement Act
• Both parents of a child born in lawful wedlock, if living
• The surviving parent of a child born in lawful wedlock
• The mother of a child born out of wedlock
• Both the mother and father of a child born out of wedlock as determined pursuant to §§ 43-104.08 to 43-104.24

If consent is not required of both parents for the reasons listed below, substitute consents shall be filed as follows:

• Consent to the adoption of a minor child who has been committed to the Nebraska Department of Health and Human Services may be given by the department or its duly authorized agent.
• When a parent has relinquished a minor child for adoption to any child-placing agency licensed or approved by the department, consent to the adoption of such child may be given by such agency.
• In all other cases, consent shall be given by the guardian or guardian ad litem of the minor child.

CONSENT OF CHILD BEING ADOPTED

Citation: Rev. Stat. § 43-104

A written consent must be executed by the minor child if over age 14 or by the adult child.

WHEN PARENTAL CONSENT IS NOT NEEDED

Citation: Rev. Stat. §§ 43-104; 43-105

Consent shall not be required of any parent who:

• Has relinquished the child for adoption by a written instrument
• Has abandoned the child for at least 6 months immediately prior to the filing of the adoption petition
• Has been deprived of his or her parental rights to the child by the order of any court of competent jurisdiction
• Is incapable of consenting

WHEN CONSENT CAN BE EXECUTED

Citation: Rev. Stat. § 43-104

A written consent or relinquishment for adoption shall not be valid unless signed at least 48 hours after the birth of the child.

HOW CONSENT MUST BE EXECUTED

Citation: Rev. Stat. § 43-106

Consents must be acknowledged before an officer authorized to acknowledge deeds and signed in the presence of at least one witness as well as the officer.

REVOCATION OF CONSENT

This issue is not addressed in the statutes reviewed.

POSTADOPTION CONTACT AGREEMENTS BETWEEN BIRTH AND ADOPTIVE FAMILIES IN NEBRASKA

Current Through August 2018

WHAT MAY BE INCLUDED IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Rev. Stat. §§ 43-155; 43-156; 43-157; 43-158; 43-166

When planning the placement of a child for adoption, the Department of Health and Human Services may determine whether the best interests of such child might be served by placing the child in an adoption involving exchange of information. In an adoption involving exchange of information one or both of the child’s biological parents contract with the department for information about the child obtained through his or her adoptive family. An exchange-of-information contract is a 2-year, renewable obligation voluntarily agreed to and signed by both the adoptive and biological parent(s)and the department.

When the department determines that an adoption involving exchange of information would serve a child’s best interests, it may enter into agreements with the child’s proposed adoptive parent(s) for the exchange of information. The nature of the information promised to be provided shall be specified in an exchange-of-information contract and may include, but shall not be limited to, letters by the adoptive parent(s) providing information regarding the child’s development or photographs of the child at specified intervals.

In a private adoption, a communication and contact agreement may include provisions for future contact or communication between the relinquishing parent(s) and the adoptee or the adoptive parent(s), or both; sharing information about the adoptee; or other matters related to communication or contact agreed to by the parties.

The agreement shall state the following: No adoption shall be set aside due to the failure of the adoptive parent(s) or the relinquishing parent(s) to follow the terms of this agreement or a later order modifying or terminating this agreement. Disagreement between the parties or a subsequent civil action brought to enforce, modify, or terminate this agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.

WHO MAY BE A PARTY TO A POSTADOPTION CONTACT AGREEMENT?

Citation: Rev. Stat. §§ 43-156; 43-162; 43-166

An exchange-of-information contract is a 2-year, renewable obligation voluntarily agreed to and signed by both the adoptive and biological parent or parents as well as the department.

If the prospective adopted child is in the custody of the department, the prospective adoptive parent or parents and the birth parent or parents of a prospective adopted child may enter into an agreement regarding communication or contact after the adoption between or among the prospective adopted child and his or her birth parent or parents.

In private adoptions or agency adoptions for adoptees not in the custody of the department, the adoptive parent(s) and the parent(s) relinquishing a child for adoption may enter into a written agreement to permit continuing communication and contact between the adoptive parent(s) and the relinquishing parent(s) after the placement of an adoptee.

In private adoptions, parents who relinquish a child for adoption shall be provided legal counsel of their choice who is independent from that of the adoptive parent(s) and at the expense of the adoptive parent(s) prior to the execution of a written relinquishment and consent to adoption or a communication and contact agreement, unless specifically waived in writing.

If the adoptee is age 14 or older at the time of placement, a communication and contact agreement shall not be valid unless consented to in writing by the adoptee.

WHAT IS THE ROLE OF THE COURT IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Rev. Stat. §§ 43-163; 43-166

Before approving an agreement for postadoption contact, the court shall appoint a guardian ad litem to represent the best interests of the child concerning such agreement.

The court may enter an order approving the agreement upon motion of one of the child’s birth parents or one of the prospective adoptive parents if the terms of the agreement are approved in writing by the prospective adoptive parents and the birth parents and if the court finds, after consideration of the recommendations of the guardian ad litem, the department, and other factors, that such communication with the birth parent or parents and the maintenance of birth family history would be in the best interests of the child.

In determining if the agreement is in the best interests of the child, the court shall consider the following factors as favoring communication with the birth parent or parents:

• Whether the child and birth parent or parents lived together for a substantial period of time
• Whether the child exhibits attachment or bonding to the birth parent or parents
• Whether the adoption is a foster parent adoption with the birth parent or parents having relinquished the prospective adopted child due to an inability to provide him or her with adequate parenting

A court may approve a communication and contact agreement entered into under § 43-166 by incorporating in the decree of adoption such agreement by reference and indicating the court’s approval of such agreement.

Enforceability of a communication and contact agreement is not contingent on court approval or its incorporation into the decree of adoption.

ARE AGREEMENTS LEGALLY ENFORCEABLE?

Citation: Rev. Stat. §§ 43-160; 43-162; 43-165; 43-166

The parties to an exchange-of-information contract shall have the authority to bring suit in a court of competent jurisdiction for the enforcement of any agreement entered into pursuant to § 43-158.

Any such agreement shall not be enforceable unless approved by the court pursuant to § 43-163.

An agreement that has been approved pursuant to § 43-163 may be enforced by a civil action, and the prevailing party may be awarded reasonable attorney’s fees as part of the costs of the action.

A communication and contact agreement entered into under § 43-166 may be enforced by a civil action. The court shall not award monetary damages as a result of the filing of a civil action pursuant to this section.

Neither the existence of nor the failure of any party to comply with the terms of a communication and contact agreement entered into under this section shall be grounds for (a) setting aside an adoption decree, (b) revoking a written relinquishment of parental rights or written consent to adoption, (c) challenging the adoption on the basis of duress or coercion, or (d) challenging the adoption on the basis that the agreement retains some aspect of parental rights by the relinquishing parent(s).

HOW MAY AN AGREEMENT BE TERMINATED OR MODIFIED?

Citation: Rev. Stat. §§ 43-159; 43-165; 43-166

After placement of a child for adoption, the department may enter into an agreement with the biological parent or parents to alter the original contract made between the department and the biological parent or parents when it is determined by the department, in consultation with the adoptive parent or parents, that certain or all exchanges of information are no longer in the best interests of the child.

The court shall not modify an order issued under § 43-163 unless it finds that the modification is necessary to serve the best interests of the adopted child as well as the following:

• The modification is agreed to by the adoptive parent or parents and the birth parent or parents.
• Exceptional circumstances have arisen since the order was entered that justify modification of the order.

A court in which a civil action is filed may enforce, modify, or terminate a communication and contact agreement entered into under § 43-166 if the court finds the following:

• Enforcing, modifying, or terminating the agreement is necessary to serve the best interests of the adoptee.
• The party seeking to enforce, modify, or terminate the agreement participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition.
• When seeking to modify or terminate the agreement, a material change in circumstances has arisen since the parties entered into the agreement that justifies modifying or terminating the agreement.

The court shall not act on a petition to enforce, modify, or terminate the agreement unless the petitioner has participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition.

RIGHTS OF UNMARRIED FATHERS IN THE NEBRASKA

Current Through August 2107

LEGAL DEFINITION OF ‘FATHER’

This issue is not addressed in the statutes reviewed.

PATERNITY REGISTRY

Citation: Rev. Stat. § 43-104.01

The Department of Health and Human Services shall establish a biological father registry. The department shall maintain the registry and shall record the names and addresses of:

• Any person adjudicated by a court of this state or by a court of another state or territory of the United States to be the biological father of a child born out of wedlock, if a certified copy of the court order is filed with the registry by such person or any other person
• Any putative father who has filed with the registry, prior to the receipt of notice under §§ 43-104.12 to 43-104.16, a request for notification of intended adoption with respect to such child
• Any putative father who has filed with the registry a notice of objection to adoption and intent to obtain custody with respect to such child

A request or notice filed under this section or § 43-104.02 shall be admissible in any action for paternity and shall bar the putative father from denying paternity of such child thereafter.

A person who has been adjudicated by a Nebraska court to be the biological father of a child born out of wedlock who is the subject of a proposed adoption shall not be construed to be a putative father for purposes of §§ 43-104.01 to 43-10405 and shall not be subject to the provisions of such sections as applied to such fathers. Whether such person’s consent is required for the proposed adoption shall be determined by the Nebraska court having jurisdiction over the custody of the child pursuant to § 43-104.22, as part of proceedings required under § 43-104 to obtain the court’s consent to such adoption.

ALTERNATE MEANS TO ESTABLISH PATERNITY

Citation: Rev. Stat. §§ 43-1408.01; 43-1411; 43-1414; 1415

During the period immediately before or after the in-hospital birth of a child whose mother was not married at the time of either conception or birth of the child or at any time between conception and birth of the child, the person in charge of such hospital shall provide to the child’s mother and alleged father, if the alleged father is readily identifiable and available, the documents and written instructions for such mother and father to complete a notarized acknowledgment of paternity. Such acknowledgment, if signed by both parties and notarized, shall be filed with the Department of Health and Human Services at the same time the certificate of live birth is filed.

A civil proceeding to establish the paternity of a child may be instituted, in the court of the district where the child is domiciled or found or, for cases under the Uniform Interstate Family Support Act, where the alleged father is domiciled, by:

• The mother or the alleged father of such child, either during pregnancy or within 4 years after the child’s birth, unless:
  • A valid consent or relinquishment has been made for purposes of adoption.
  • A court has jurisdiction over custody of the child or jurisdiction over an adoption matter with respect to the child.
• The guardian or next friend of such child or the state, either during pregnancy or within 18 years after the child’s birth

In any proceeding to establish paternity, the court may order or the department shall require the child, the mother, and the alleged father to submit to genetic testing. The results of the tests, including the statistical probability of paternity, shall be admissible evidence and shall be weighed along with other evidence of paternity. When the results of the tests show a probability of paternity of 99 percent or more, there shall exist a rebuttable presumption of paternity.

REQUIRED INFORMATION

Citation: Rev. Stat. § 43-104.01

A request filed with the registry shall include:

• The putative father’s name, address, and Social Security number
• The name and last-known address of the mother
• The month and year of the birth or the expected birth of the child
• The case name, court name, and location of any Nebraska court having jurisdiction over the custody of the child
• A statement by the putative father that he acknowledges liability for contribution to the support and education of the child after birth and to the pregnancy-related medical expenses of the mother of the child

The person filing the notice shall notify the registry of any change of address pursuant to procedures prescribed in rules and regulations of the department.

REVOCATION OF CLAIM TO PATERNITY

Citation: Rev. Stat. §§ 43-104.01; 43-1409

Any putative father who files request for notification of intended adoption or a notice of objection to adoption and intent to obtain custody with the biological father registry may revoke such filing. Upon receipt of such revocation by the registry, the effect shall be as if no filing had ever been made.

The signing of a notarized acknowledgment by the alleged father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized acknowledgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) 60 days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party.

The legal responsibilities of any signatory arising from the acknowledgment, including child support obligations, may not be suspended during the pendency of the challenge, except for good cause shown.

ACCESS TO INFORMATION

Citation: Rev. Stat. § 43-104.01

The department shall not divulge the names and addresses of persons listed with the biological father registry to any other person except as authorized by law or upon order of a court of competent jurisdiction for good cause shown.

WHO MAY ADOPT, BE ADOPTED, OR PLACE A CHILD FOR ADOPTION IN NEBRASKA

Current Through December 2015

WHO MAY ADOPT

Citation: Rev. Stat. § 43-101

Any adult person may adopt. A husband and wife must adopt jointly unless the adoptive parent is a stepparent.

WHO MAY BE ADOPTED

Citation: Rev. Stat. § 43-101

Any minor or adult child may be adopted.

WHO MAY PLACE A CHILD FOR ADOPTION

Citation: Rev. Stat. §§ 43-104; 43-105

The following persons may consent to the adoptive placement:

• The parents
• The Department of Health and Human Services
• A licensed child-placing agency
• The child’s guardian or guardian ad litem

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