Tag Archives: vacate judgment

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.