CONSENT TO ADOPTION IN TEXAS

Current Through March 2017

WHO MUST CONSENT TO AN ADOPTION

Citation: Fam. Code § 162.010

Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed.

If a parent of the child is presently the spouse of the petitioner, that parent must join in the petition for adoption, and further consent of that parent is not required.

CONSENT OF CHILD BEING ADOPTED

Citation: Fam. Code § 162.010

A child who is age 12 or older must consent to the adoption in writing or in court. The court may waive this requirement if it would serve the child’s best interests.

WHEN PARENTAL CONSENT IS NOT NEEDED

Citation: Fam. Code §§ 161.001; 162.010

The rights of an alleged father may be terminated if:

• After being served with a citation, he does not respond by the timely filing of an admission of paternity or a counterclaim for paternity.
• The child is older than age 1 at the time the petition for adoption is filed, he has not registered with the paternity registry, and after the exercise of due diligence by the petitioner, his identity and location are unknown or his identity is known but he cannot be located.
• The child is younger than age 1 at the time the petition for adoption is filed, and he has not registered with the paternity registry.
• He has registered with the paternity registry, but the petitioner’s attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner.

The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause.

WHEN CONSENT CAN BE EXECUTED

Citation: Fam. Code §§ 161.103; 161.106

An affidavit for voluntary relinquishment of parental rights must be signed after the birth of the child but not before 48 hours after the birth of the child by the parent, whether or not a minor, whose parental rights are to be relinquished.

A man may sign an affidavit disclaiming any interest in a child before the birth of the child.

HOW CONSENT MUST BE EXECUTED

Citation: Fam. Code §§ 161.103; 161.106

An affidavit for voluntary relinquishment of parental rights must be signed by the parent, whether or not a minor, whose parental rights are to be relinquished, witnessed by two credible persons, and verified before a person authorized to take oaths. The affidavit must contain:

• The name, address, and age of the parent whose parental rights are being relinquished
• The name, age, and birth date of the child
• The names and addresses of the guardians of the child, if any
• A statement that the person signing the affidavit is or is not presently obligated to make payments for the support of the child
• A description of all property owned by the child
• An allegation that termination of the parent-child relationship is in the best interests of the child
• The name and address of the other parent or a statement that the parental rights of the other parent have been terminated or that the child has no presumed father
• A statement that the parent has been informed of parental rights and duties
• A statement that the relinquishment is revocable, irrevocable, or irrevocable for a stated period of time
• The designation of a prospective adoptive parent, the department, or a licensed child-placing agency to serve as managing conservator of the child

The affidavit may not contain terms for limited posttermination contact between the child and the parent whose parental rights are to be relinquished as a condition of the relinquishment of parental rights.

A man may sign an affidavit disclaiming any interest in a child and waiving notice in any suit filed or to be filed affecting the parent-child relationship. The affidavit shall be signed by the man, whether or not a minor; witnessed by two credible persons; and verified before a person authorized to take oaths. The affidavit may contain a statement that the affiant does not admit being the father of the child or having had a sexual relationship with the mother of the child.

REVOCATION OF CONSENT

Citation: Fam. Code §§ 162.011; 162.011

At any time before an order granting the adoption of the child is rendered, a consent required by § 162.010 may be revoked by filing a signed revocation.

An affidavit of relinquishment of parental rights that fails to state that the relinquishment is irrevocable for a stated time is:

• Revocable only if the revocation is made before the 11th day after the date the affidavit is executed
• Irrevocable on or after the 11th day after the date the affidavit is executed

POSTADOPTION CONTACT AGREEMENTS BETWEEN BIRTH AND ADOPTIVE FAMILIES IN TEXAS

Current Through August 2018

WHAT MAY BE INCLUDED IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Fam. Code §§ 161.2061; 161.2062

An order terminating the parent-child relationship may include terms that allow the biological parent to:

• Receive specified information regarding the child
• Provide written communications to the child
• Have limited access to the child

The order of termination may not require that a subsequent adoption order include terms regarding limited posttermination contact between the child and a biological parent.

The inclusion of a requirement for posttermination contact in a termination order does not affect the finality of a termination or subsequent adoption order or grant standing to a parent whose parental rights have been terminated to file any action under this title after the court renders a subsequent adoption order with respect to the child.

WHO MAY BE A PARTY TO A POSTADOPTION CONTACT AGREEMENT?

Citation: Fam. Code § 161.2061

The agreement shall be between the biological parent and the Department of Family and Protective Services.

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

Citation: Fam. Code § 161.2061

If the court finds it to be in the best interests of the child, the court may provide in an order terminating the parent-child relationship that the biological parent who filed an affidavit of voluntary relinquishment of parental rights under § 161.103 shall have limited posttermination contact with the child on the agreement of the biological parent and the department.

ARE AGREEMENTS LEGALLY ENFORCEABLE?

Citation: Fam. Code § 161.2061

The terms of an order of termination regarding limited posttermination contact may be enforced only if the party seeking enforcement pleads and proves that, before filing the motion for enforcement, the party attempted in good faith to resolve the disputed matters through mediation.

The terms of an order of termination under this section are not enforceable by contempt.

The inclusion of a requirement for posttermination contact in a termination order does not:

• Affect the finality of a termination or subsequent adoption order
• Grant standing to a parent whose parental rights have been terminated to file any action under this title after the court renders a subsequent adoption order with respect to the child

HOW MAY AN AGREEMENT BE TERMINATED OR MODIFIED?

Citation: Fam. Code § 161.2061

The terms of an order of termination regarding limited posttermination contact may not be modified.

RIGHTS OF UNMARRIED FATHERS IN TEXAS

LEGAL DEFINITION OF ‘FATHER’

Citation: Family Code §§ 160.102; 160.204

An ‘adjudicated father’ is a man who has been adjudicated by a court to be the father of a child. A ‘presumed father’ is a man who, by operation of law under § 160.204, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.

A man is presumed to be the father of a child if:

• He is married to the mother of the child, and the child is born during the marriage.
• He was married to the child’s mother, and the child is born before the 301st day after the date the marriage is terminated.
• He married the child’s mother before the birth of the child, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated.
• He married the child’s mother after the birth of the child, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
  • The assertion is in a record filed with the Vital Statistics Unit.
  • He is voluntarily named as the child’s father on the child’s birth certificate.
  • He promised in a record to support the child as his own.
• During the first 2 years of the child’s life, he continuously resided in the household in which the child resided, and he represented to others that the child was his own.

PATERNITY REGISTRY

Citation: Family Code §§ 160.401; 160.402

A registry of paternity is established in the Vital Statistics Unit.

A man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity:

• Before the birth of the child
• No later than the 31st day after the date of the birth of the child

ALTERNATE MEANS TO ESTABLISH PATERNITY

Citation: Family Code §§ 160.301; 160.302; 160.402; 160.601

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity. An acknowledgment of paternity must:

• Be in a record
• Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
• State that the child whose paternity is being acknowledged:
  • Does not have a presumed father or has a presumed father whose full name is stated
  • Does not have another acknowledged or adjudicated father
• State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing
• State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances

A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:

• A father-child relationship between the man and the child has been established under this chapter or another law.
• The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.

The parentage of a child may be adjudicated in a civil proceeding.

REQUIRED INFORMATION

Citation: Family Code §§ 160.411; 160.402

The Vital Statistics Unit shall adopt a form for registering with the registry. The form requires the signature of the registrant and must state that:

• The form is signed under penalty of perjury.
• A timely registration entitles the registrant to notice of a proceeding for adoption of the child or for termination of the registrant’s parental rights.
• A timely registration does not commence a proceeding to establish paternity.
• The information disclosed on the form may be used against the registrant to establish paternity.
• Services to assist in establishing paternity are available to the registrant through the support enforcement agency.
• The registrant should also register in another state if the conception or birth of the child occurred in the other state.
• Information on registries in other states is available from the unit.
• Procedures exist to rescind the registration of a claim of paternity.

A registrant shall promptly notify the registry of any change in the information provided by the registrant. The Vital Statistics Unit shall incorporate all new information received into its records, but is not required to affirmatively seek to obtain current information for incorporation in the registry.

REVOCATION OF CLAIM TO PATERNITY

Citation: Family Code §§ 160.307; 160.308; 160.414

A signatory may rescind an acknowledgment of paternity before the earlier of:

• Sixty days after the effective date of the acknowledgment
• The date a proceeding to which the signatory is a party is initiated before a court to adjudicate an issue relating to the child, including a proceeding that establishes child support

After the period for rescission has expired, a signatory of an acknowledgment of paternity may commence a proceeding to challenge the acknowledgment only on the basis of fraud, duress, or material mistake of fact. The proceeding may be commenced at any time before the issuance of an order affecting the child identified in the acknowledgment or denial, including an order relating to support of the child. A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

Evidence based on genetic testing that the man who is the signatory of an acknowledgement of paternity is not rebuttably identified as the father of a child in accordance with § 160.505 constitutes a material mistake of fact.

A registrant in the putative fathers registry may rescind his registration at any time by sending a rescission in a record or another manner authenticated by him and witnessed or notarized to the registry.

ACCESS TO INFORMATION

Citation: Family Code § 160.412

The Vital Statistics Unit is not required to attempt to locate the mother of a child who is the subject of a registration. The unit shall send a copy of the notice of the registration to a mother who has provided an address.

Information contained in the registry is confidential and only may be released on request to:

• A court or a person designated by the court
• The mother of the child who is the subject of the registration
• An agency authorized by law to receive the information
• A licensed child-placing agency
• A support enforcement agency
• A party, or the party’s attorney of record, to a proceeding under this chapter or a proceeding to adopt or to terminate parental rights regarding a child who is the subject of the registration
• The registry of paternity in another state

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

Current Through December 2015

WHO MAY ADOPT

Citation: Fam. Code § 162.001

Any adult may adopt a child.

WHO MAY BE ADOPTED

Citation: Fam. Code §§ 162.001; 162.501; 162.504

A child residing in the State may be adopted if:

• The rights of the parents have been terminated.
• The parent whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption.
• The child is at least 2 years old, the parent-child relationship has been terminated with respect to one parent, the person seeking the adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of 6 months preceding the adoption, or is the child’s former stepparent, and the nonterminated parent consents to the adoption.
• The child is at least 2 years old, the parent-child relationship has been terminated with respect to one parent, and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of 1 year preceding the adoption.

An adult residing in this State may adopt another adult with the adult adopted person’s written consent.

WHO MAY PLACE A CHILD FOR ADOPTION

Citation: Fam. Code §§ 162.025; 162.001

Only the following entities may place the child:

• The child’s natural or adoptive parent
• The child’s legal guardian
• A licensed child-placing agency
• The Department of Family and Protective Services

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