CONSENT TO ADOPTION IN CALIFORNIA

Current Through March 2017

WHO MUST CONSENT TO AN ADOPTION

Citation: Fam. Code §§ 8603; 8604; 8605

Consent is required from the following persons:

• The birth parents, if living
• The parent having custody if the other parent:
  • Fails to communicate with and support the child
  • Fails to respond to notice of adoption
• The spouse of the adopting parent, if the adopting parent is married

CONSENT OF CHILD BEING ADOPTED

Citation: Fam. Code § 8602

A child age 12 or older must consent to the adoption.

WHEN PARENTAL CONSENT IS NOT NEEDED

Citation: Fam. Code §§ 8603; 8604; 8606

The court may dispense with the consent of a spouse who cannot be located after diligent search or a spouse determined by the court to lack the capacity to consent.

The consent of a presumed father is not required for the child’s adoption unless he became a presumed father before the mother’s relinquishment, before consent becomes irrevocable, or before the mother’s parental rights have been terminated.

The consent of a noncustodial parent is not required if the parent willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so for a period of 1 year. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.

The consent of a birth parent is not necessary when the birth parent has:

• Been judicially deprived of the custody and control of the child
• Voluntarily surrendered the right to the custody and control of the child
• Deserted the child without provision for identification of the child
• Relinquished the child for adoption as provided in § 8700
• Relinquished the child for adoption to a licensed or authorized child-placing agency in another jurisdiction

POSTADOPTION CONTACT AGREEMENTS BETWEEN BIRTH AND ADOPTIVE FAMILIES IN CALIFORNIA

Current Through August 2018

WHAT MAY BE INCLUDED IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The terms of any postadoption contact agreement shall be limited to, but need not include, all of the following:

• Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings, and the child’s Indian Tribe if the case is governed by the Indian Child Welfare Act
• Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both, and in cases governed by the Indian Child Welfare Act, the child’s Indian Tribe
• Provisions for the sharing of information about the child in the future

The terms of any postadoption contact agreement shall be limited to the sharing of information about the child unless the child has an existing relationship with the birth relative.

A postadoption agreement shall contain the following warnings in bold type:

• After the adoption petition has been granted by the court, the adoption cannot be set aside due to the failure of an adopting parent; a birth parent; a birth relative, including a sibling; an Indian Tribe; or the child to follow the terms of this agreement or a later change to this agreement.
• A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.
• A court will not act on a petition to change or enforce this agreement unless the petitioner has participated, or attempted to participate, in good faith mediation or other appropriate dispute resolution proceedings to resolve the dispute.

When a court orders that a dependent child be placed for adoption, nothing in the adoption laws of this State shall be construed to prevent the prospective adoptive parent or parents of the child from expressing a willingness to facilitate postadoptive sibling contact.

WHO MAY BE A PARTY TO A POSTADOPTION CONTACT AGREEMENT?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The following persons may be parties to a postadoption contact agreement:

• The adopting parent or parents
• The birth relatives, including the birth parent or parents or any siblings
• The child
• In cases governed by the Indian Child Welfare Act, the child’s Indian Tribe

The child who is the subject of the adoption petition shall be considered a party to the postadoption contact agreement. A child who is age 12 or older must consent in writing to the terms and conditions of the postadoption contact agreement and any subsequent modifications, unless the court finds by a preponderance of the evidence that the postadoption agreement, as written, is in the best interests of the child.

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

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

At the time of an adoption decree, the court entering the decree may grant postadoption privileges if an agreement for those privileges has been executed, including agreements entered into pursuant to § 8620(f) (pertaining to agreements between an Indian child and the child’s Tribe).

Upon the granting of the adoption petition and the issuance of the order of adoption of a child who is a dependent of the juvenile court, juvenile court dependency jurisdiction shall be terminated. Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption.

The court shall not set aside an adoption decree, rescind a relinquishment, or modify an order to terminate parental rights because of the failure of any party to comply with the original terms of, or subsequent modifications to, the agreement. Exceptions are as follows:

• Prior to issuing the adoption order involving an Indian child and upon a petition of the birth parents; birth relatives, including a sibling; or an Indian Tribe, the court may order the parties to engage in family mediation services to reach an agreement if the prospective adoptive parent fails to negotiate in good faith to execute a postadoption contact agreement.
• Prior to issuing the adoption order involving an Indian child, if the parties fail to negotiate in good faith to execute an agreement during the negotiations entered into pursuant to the above paragraph, the court may modify prior orders or issue new orders as necessary to ensure the best interests of the Indian child are met. This includes, but is not limited to, requiring parties to engage in further family mediation services to reach an agreement, initiating guardianship proceeding in lieu of adoption, or authorizing a change of adoptive placement for the child.

ARE AGREEMENTS LEGALLY ENFORCEABLE?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption. The court may not order compliance with the agreement absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action, and that the enforcement is in the best interests of the child.

Documentary evidence or offers of proof may serve as the basis for the court’s decision regarding enforcement. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the child’s home to the detriment of the child.

The court may not award monetary damages as a result of the filing of the civil action for enforcement of the agreement.

HOW MAY AN AGREEMENT BE TERMINATED OR MODIFIED?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

A postadoption contact agreement may be modified or terminated only if either of the following occurs:

• All parties, including the child if the child is age 12 or older at the time of the requested termination or modification, have signed a modified postadoption contact agreement and the agreement is filed with the court that granted the petition of adoption.
• The court finds all of the following:
  • The termination or modification is necessary to serve the best interests of the child.
  • There has been a substantial change of circumstances since the original agreement was executed and approved by the court.
  • The party seeking the termination or modification has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings prior to seeking court approval of the proposed termination or modification.

If, following entry of an order for sibling contact, the adoptive parent(s) determine that sibling contact poses a threat to the health, safety, or well-being of the adopted child, the adoptive parent(s) may terminate the sibling contact, provided that the adoptive parent(s) must submit written notification to the court within 10 days after terminating the contact. The notification must state to the court the reasons why the health, safety, or well-being of the adopted child would be threatened by continued sibling contact.

RIGHTS OF UNMARRIED FATHERS IN CALIFORNIA

Current Through August 2017

LEGAL DEFINITION OF ‘FATHER’

Citation: Family Code §§ 7601; 7611

‘Natural parent’ means a nonadoptive parent, whether biologically related to the child or not. ‘Parent and child relationship’ means the legal relationship existing between a child and the child’s parents incident to which the law confers or imposes rights, privileges, duties, and obligations. This section does not preclude a finding that a child has more than two parents.

A person is presumed to be the natural parent of a child if the person meets the following conditions:

• The presumed parent and the child’s natural mother are or have been married to each other, and the child is born during the marriage or within 300 days after the marriage is terminated.
• Before the child’s birth, the presumed parent and the child’s natural mother have attempted to marry each other, although the attempted marriage is or could be declared invalid, and either of the following is true:
  • If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within 300 days after its termination.
  • If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
• After the child’s birth, the presumed parent and the child’s natural mother have married or attempted to marry each other, although the attempted marriage is or could be declared invalid, and either of the following is true:
  • With his or her consent, the presumed parent is named as the child’s parent on the child’s birth certificate.
  • The presumed parent is obligated to support the child under a written voluntary promise or by court order.
• The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.

PATERNITY REGISTRY

CITATION: FAMILY CODE §§ 7571; 7573

On and after January 1, 1995, upon the event of a live birth, prior to an unmarried mother leaving any hospital, the person responsible for registering live births shall provide to the natural mother and shall attempt to provide, at the place of birth, a voluntary declaration of paternity together with the written materials described in § 7572 to the man identified by the natural mother as the natural father. Staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed. A copy of the declaration shall be made available to each of the attesting parents.

Except as provided in §§ 7575, 7576, 7577, and 7612, a completed voluntary declaration of paternity that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.

ALTERNATE MEANS TO ESTABLISH PATERNITY

Citation: Family Code §§ 7551; 7555; 7635.5

In a civil action or proceeding in which paternity is a relevant fact, the court may order the mother, child, and alleged father to submit to genetic tests. A party’s refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity.

There is a rebuttable presumption of paternity if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence.

In any action brought pursuant to this article, if the alleged father is present in court for the action, the court shall inform the alleged father that he has the right to have genetic testing performed to determine if he is the biological father of the child. The court shall further inform the alleged father of his right to move to set aside or vacate a judgment of paternity within 2 years of the date he received notice of the action to establish paternity and that after that time has expired he may not move to set aside or vacate the judgment of paternity, regardless of whether genetic testing shows him not to be the biological father of the child.

REQUIRED INFORMATION

Citation: Family Code § 7574

The voluntary declaration of paternity shall be executed on a form developed by the Department of Child Support Services in consultation with the Department of Health Services, the California Family Support Council, and child support advocacy groups. The form shall contain, at a minimum, the following:

• The name and the signature of the mother
• The name and the signature of the father
• The name of the child
• The date of birth of the child
• A statement by the mother that she has read and understands the written materials described in § 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity
• A statement by the father that he has read and understands the written materials described in § 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity
• The name and the signature of the person who witnesses the signing of the declaration by the mother and the father

REVOCATION OF CLAIM TO PATERNITY

Citation: Family Code § 7575

Either parent may rescind the voluntary declaration of paternity by filing a rescission form with the Department of Child Support Services within 60 days of the date of execution of the declaration by the attesting father or attesting mother, whichever signature is later, unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party.

If the court finds that the results of genetic tests show that the man who signed the voluntary declaration is not the father of the child, the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interests of the child.

If the voluntary declaration of paternity is set aside, the court shall order that the mother, child, and alleged father submit to genetic tests. If the court finds that the conclusions of the genetic tests are that the person who executed the voluntary declaration of paternity is not the father of the child, the question of paternity shall be resolved accordingly. If the person who executed the declaration of paternity is ultimately determined to be the father of the child, any child support that accrued under an order based upon the voluntary declaration of paternity shall remain due and owing.

ACCESS TO INFORMATION

This issue is not addressed in the statutes reviewed.

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

Current Through December 2015

WHO MAY ADOPT

CITATION: FAMILY CODE §§ 8600; 8601; 9000; 9326

A child may be adopted by an adult who is at least 10 years older than the child. An exception to this requirement may be made if the adoptive parent is a stepparent, sister, brother, aunt, uncle, or first cousin of the child and, if that person is married, is adopting jointly with his or her spouse.

A stepparent may adopt the child of the stepparent’s spouse, and a domestic partner may adopt the child of his or her domestic partner.

The provider of board and care, treatment, habilitation, or other services to persons with developmental disabilities of a spouse or employee of a provider may adopt.

WHO MAY BE ADOPTED

Citation: Family Code §§ 8600; 9300; 9302; 9320; 9326

The following adoptions are permitted:

• An unmarried minor may be adopted by an adult.
• An adult, including a stepparent, may adopt another adult who is younger, except for the spouse of the prospective adoptive parent.
• A married minor who is either legally separated or whose spouse has given consent to the adoption may be adopted.
• A developmentally disabled adult may be adopted.

WHO MAY PLACE A CHILD FOR ADOPTION

Citation: Family Code §§ 8801.5; 8704

A child may be placed by any of the following:

• The child’s birth parent(s) in an independent adoption
• A licensed adoption agency, county adoption agency, or the department that has custody of the child

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