Tag Archives: consent to adoption

How-To Book on Adoption and Surrogacy

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Considering handling your own Florida adoption without an agency or attorney? Thinking about a Florida gestational surrogacy, either as an intended parent or surrogate? The how-to book, Adoption and Surrogacy in Florida: The Legal and Practical Sourcebook for Laypersons and Lawyers, will guide you through the laws and procedures and potentially save you thousands of dollars. Comes with an invaluable CD-ROM containing all the forms in the book.

*Edit (04/16/2015) There have been significant changes in adoption and surrogacy law in Florida since the publication of this book, and the book is no longer available.

Adoptive Parents’ Fear of Adoption Reversal is Unwarranted.

As with politics, religion and movie stars, news and entertainment shows exploit conflict. Overturned adoptions are no exception. As a result, otherwise prospective adoptive parents shy away from adoption believing that any parent-child relationship formed would be precarious at best. Despite what the media would have you believe, a family built via adoption should be as solid and permanent as any. Overturned adoptions are the exception to the rule. The question remains: How long after the adoption is finalized is it no longer subject to reversal?

If the challenge is based on fraud or duress, it must be filed no later than one year from the date of the final judgment of termination of parental rights. If the challenge is based on a procedural defect or irregularity in the consent that was discoverable by the time an appeal must be filed, the challenge must be in the form of an appeal and filed no later than one month from the date of the final judgment of termination of parental rights.

The term “fraud” contemplates two elements: 1) an intentional misrepresentation of a material fact by the person seeking the parent’s consent, and 2) the parent’s signing of the consent in reliance on that misrepresentation. If the misrepresentation did not entail a material fact, or if the person signing the consent would have signed it despite the misrepresentation, there’s no fraud.

The term “duress” means that an opposing party has imposed improper pressure on a parent to sign a consent to adoption. The pressure contemplated is not necessarily the equivalent of having a gun held to one’s held, but is more forceful than a threat made by a third party such as the parent’s attorney or mother.

In either case — fraud or duress — the challenge to vacate the judgment must be filed within one year of the date the judgment of termination of parental rights (not the judgment of adoption) was entered.

A procedural defect refers to the lack of adherence to the rules of procedure during the termination of parental rights proceeding. An irregularity in the consent could mean anything from improper execution of the consent to inadequate or incorrect verbiage within the consent. In either of these scenarios, the challenge must be in the form of an appeal of the final judgment of termination of parental rights, which must be made within thirty days of the date of that judgment. See F.S. 63.142(4) and F.S. 63.182.

The challenge is not made to the judgment of adoption, but to the judgment of termination of parental rights. Only if the judgment of termination of parental rights is overturned or vacated, will the judgment of adoption be nullified.

Adopting an Out-of-State Child Can Increase Adoption Expenses.

Adopting a child outside of the state in which you live, assuming the child is not a relative or stepchild, will likely be more expensive than adopting a child residing within your state. The main reason for the extra expense is the Interstate Compact on the Placement of Children (“ICPC”), a uniform law which has been adopted by all 50 states, the District of Colombia and the U.S. Virgin Islands.

Though the law doesn’t come right out and say it in plain terms, its purpose is to insure that the “receiving” state is aware of children coming into the state who may or may not end up requiring state assistance.

Photo credit - Joplin Hendrix da Silva Cruz

Adoption of a child from another state naturally involves two states: the state in which the child resides (sending state) and the state in which the adoptive parent resides (receiving state). Each state has its own ICPC office and each state regulates ICPC procedure differently. (In Florida, ICPC is regulated and enforced by the Department of Children and Families. See F.S. section 409.401 et seq.) Because two ICPC offices are involved in an out-of-state adoption, confusion and duplication of efforts can often result.

Each ICPC office requires the adoption information be packaged in a particular way, to include completion of forms unique to that state. In addition to distinct ICPC procedures and forms, each state’s laws and procedures covering termination of parental rights and adoption are unique as well. For example, the formalities of signing, and content of, a consent for adoption vary from state to state. Some states will allow the termination of parental rights to be completed in the child’s state and the adoption to be completed in the adoptive parent’s state. Some, such as Florida, require that both proceedings be completed in the child’s state.

So, if you intend to adopt an out-of-state child who is not related to you or is not your stepchild, you will need an adoption agency or an adoption attorney who is familiar with and experienced in out-of-state adoptions. Be prepared to pay extra for the tedium of dealing with two ICPC agencies. If you go with someone inexperienced for the sake of saving money, you may end up with a mess on your hands and having to start over, which will increase your expenses, or worse, result in a failed adoption.

So, how can you know for sure if ICPC will apply in your case? If the child is the subject of a state action due to abuse, abandonment or neglect (in other words, the state has removed the child from his or her parents), ICPC will apply whether or not the child is a relative or a stepchild. Also, if the out-of-state child will be placed with you in your state for adoption purposes, ICPC applies. Other factors may or may not affect ICPC applicability. The best course of action is to contact an adoption professional, such as an agency or attorney, in your own state who is experienced in out-of-state placements and adoptions. The more experience you have on your side, the smoother and less expensive the procedure will be.

Photo credit – Joplin Hendrix da Silva Cruz

Legal Father Trumps Biological Father, Sometimes.

It’s not uncommon to hear stories of married women who give birth and it turns out the husband is not the baby’s father. Naturally, a question arises of whether the unmarried biological father (“UBF”) has any right to the child. In Florida, a child born during the marriage is presumed to be the husband’s child because the law favors legitimacy.

If the mother is married at the time of the birth, and a court has not already declared another man to be the father, the husband’s name must be entered on the birth certificate. See F.S. 382.013(2)(a). Only one father’s name goes on the birth certificate.

What if the mother lies and says she’s not married? What if she and the UBF execute an affidavit of paternity swearing the UBF is the child’s father? While an affidavit of paternity creates a rebuttable presumption of paternity (see F.S. 742.10(1)) that presumption can be overcome by proof or by a preemptive law. Since a married mother and a UBF are precluded from filing an affidavit of paternity with the Office of Vital Statistics, the fraudulent affidavit of paternity amounts to a nullity.

In terms of adoption, if the mother is married at the time of the child’s conception or birth, the court (or the adoption entity) cannot make any further inquiry of the father’s identity. In other words, the UBF cannot even be identified, is not given any consideration and is not entitled to notice of the adoption. He cannot force the issue by filing a petition to determine paternity: his petition will be dismissed. The husband’s consent to adoption will be required, but not the UBF’s, in order for the adoption to be granted.

If, on the other hand, the husband permits the UBF’s petition to determine paternity to go forward, the husband’s consent will still be required, but so will the UBF’s, assuming the UBF is determined by a court to be the father before a petition to terminate parental rights is filed, and assuming he has complied with the requirements of F.S. 63.054 and 63.062. If the UBF’s consent is required, the UBF has the power to stop the adoption. (Technically, after determination of paternity, the UBF is no longer a UBF, or unmarried biological father.)

The next logical question is: Between the legal father and the UBF who’s established paternity, whose rights trump? As far as I know, the law does not contemplate two fathers with equal rights to a child. That being the case, I would venture to say the UBF wins because the legal father has allowed the UBF to be declared the father.

In Florida, an unmarried biological father is not a “parent.”

In Florida, a father is an unmarried biological father if he is not married to the mother at the time of the conception or birth of the child; and (a) he has not been adjudicated by a court to be the child’s father before a petition is filed to terminate his parental rights; and (b) he has not signed an affidavit of paternity before a petition is filed to terminate his parental rights. Why is this important? Because in Florida, an unmarried biological father is not considered a “parent,” under Chapter 63 of the Florida Statutes.

Example 1: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes, and a court adjudicates him as the child’s father. A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 2: Father is not married to mother at time of conception or birth of child, but his name is on the child’s birth certificate (which means he signed an affidavit of paternity). A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 3: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes. Before the court enters an order adjudicating him as the father, the adoption entity files a petition to terminate his parental rights. This man does not fit within the definition of “parent.”

A unmarried biological father’s lack of parental status carries several legal ramifications relating to his child. They are as follows:

(a) Adoption. If the birth mother places the child for adoption, his consent to the adoption is not required, unless he jumps through several hoops prior to the time a petition is filed to terminate his parental rights.

If the child is less than 6 months of age when placed for adoption, the unmarried biological father must do the following things before the mother executes a consent for adoption:

i) file a Claim of Paternity with the Florida Office of Vital Statistics (Click here to file a Claim of Paternity);

ii) contribute to the birth mother’s and child’s medical expenses related to pregnancy and birth, if he had knowledge of the pregnancy and if he was not prevented from doing so by the mother of legal custodian of the child; and

iii) if served with a notice of intended adoption plan, executed and filed an affidavit with the court that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay. (Click here for Florida law pertaining to unmarried biological fathers’ responsibilities.)

If the child is 6 months of age or older, the unmarried biological father must: i) have maintained a relationship with the child by visiting with the child at least monthly if not prevented from doing so by the birth mother or the child’s legal custodian; ii) have maintained regular communication with the child, when physically and financially able, and not prevented from doing so by the birth mother or the child’s legal custodian.

If the unmarried biological father fails to do the things shown above, according to the child’s age, his consent will not be required for purposes of adoption.

(b) Temporary Custody. Under Chapter 751 of Florida Statutes, an extended family member (such as an aunt, uncle, grandparent, sibling, even stepparent) can petition for temporary custody of a child under certain circumstances. Because an unmarried biological father is not considered a parent, his relatives are not considered extended family members and cannot petition for temporary custody of his child. In fact, the unmarried biological father himself does not have standing to object to temporary custody under this Chapter, and he is not entitled to notice of such proceedings.

(c) Dependency Actions. Under Chapter 39 of Florida Statutes, the State may file a shelter petition to shelter a child from its parents. The State or any person with knowledge that the child has been abused, abandoned or neglected, may file a petition for dependency to have the child adjudicated dependent. While entitled to notice of a dependency action, an unmarried biological father is considered only a “participant,” not a “party,” in any dependency action relating to his child. This means that he is entitled to notice and may address the court; however, he is not entitled to a court-appointed attorney nor can he cross-examine witnesses, obtain discovery documents, etc. If he files a petition to determine his paternity under Chapter 742 of Florida Statutes and is adjudicated the father of the child, then he becomes a party in the dependency action. (Click here for law pertaining to determining parentage.)

In Florida, a minor parent has authority to consent to adoption.

In Florida, a minor parent, irrespective of age, has the authority to place his or her child for adoption. Even without his or her own parent’s permission, a minor parent’s consent to adoption is valid and binding upon execution, as long as it’s properly executed. See F.S. 63.082(1)(b).

If the minor parent is 14 years of age or younger, his or her signature must be witnessed by a parent, legal guardian, or court-appointed guardian ad litem. See F.S. 63.082(1)(c). This requirement for witnessing is not to be construed as a requirement for permission. If the parent, etc., refuses to witness execution, the minor could request appointment of a guardian ad litem from the court. The sole purpose of the guardian ad litem would then be to report to the court what is in the minor parent’s best interests. If the guardian ad litem believes it’s in the minor parent’s best interests to place the child for adoption, the court can allow the guardian ad litem can to witness the minor parent’s signature.

If the minor parent is over the age of 14, his or her signature does not need to be witnessed by the minor’s parent, legal guardian or guardian ad litem. No matter the age at the time he or she executes the consent, a minor parent cannot revoke the consent upon reaching the age of majority.

The same laws apply to a minor father, except that the minor father may instead execute an affidavit of non-paternity any time before or after the baby’s birth. The affidavit of non-paternity is also valid upon execution and cannot be revoked when the minor father reaches the age of majority.

Coming soon: how to properly execute a consent to adoption or affidavit of non-paternity.