Aleita Ailes, Attorney at Law, LLC
Attorney at Law
Contested Adoptions Initiated by a Biological Parent
Contests Initiated by a Biological Parent Challenging the Consent to Adoption

The consent of the biological parent or guardian of the child must be obtained before a valid adoption can take place, unless there has been a waiver or forfeiture of parental rights. Therefore, if it can be shown that the biological parent or guardian did not consent to the adoption, there may be sufficient grounds upon which to set it aside. Even where there has been a seemingly valid consent, the biological parent or guardian may be able to challenge an adoption. If the consent was not executed before a judge, it may be possible to show that the consent did not comply with statutory requirements or that the consent was otherwise invalid because it was induced by fraud or duress or by some other unlawful action.

A Biological Parent's Attempt to Revoke Before Adoption Decree Entered

Generally, a consent is deemed irrevocable if it was properly executed before a judge or referee in a court with jurisdiction over adoption proceedings and the parent was aware of the consequences of the consent. Strict compliance with statutory formalities is often presumptive evidence of a voluntary and knowing consent.

The statutes of a few states provide that the consent to an adoption becomes irrevocable after an interlocutory order of adoption or a final decree of adoption. However, a claim that the consent was the result of fraud or duress or that there was some other irregularity or procedural defect may be grounds for contesting the adoption even in those states where a properly executed consent is deemed binding.

Most jurisdictions will not allow a revocation to halt an adoption proceeding automatically if the adoptive parents oppose the revocation, even though the notice of revocation met all the statutory requirements. Instead, the attempted withdrawal of consent will trigger a hearing to determine whether the statutory grounds exist for an involuntary termination of parental rights or whether a return of the child to the biological parents is in the best interests of the child. To succeed at the best-interests hearing, the biological parent must demonstrate that it would be better for the child to be returned. It is likely that the adoption will be allowed to go forward if the child is doing well with the adoptive parents and the biological parent has no better reason for revoking than temporary depression, change of mind, or other similar grounds.

At the conclusion of a best-interests hearing, the court has a variety of options. If it determines that the child's interests warrant a denial of the biological parent's request to revoke consent, the court will permit the adoption to proceed. This will have the legal effect of terminating the parent's rights. If the court determines that the child's interests justify revocation of the biological parent's consent, the court may dismiss the adoption proceeding and return custody of the child to the biological parent.

When the biological parent has surrendered a child to an adoption agency, the procedure to revoke or annul the surrender may be more difficult then in an independent adoption because more procedural safeguards are involved. The determination as to whether the biological parent's time to revoke the surrender has expired may depend upon whether the adoption agency has complied with particular statutory requirements regarding the child's placement. If these requirements have not been met, there may have been no valid placement, and the period limiting the time to revoke will not yet have begun to run.

A Biological Parent's Attempt to Revoke After Entry of Adoption Decree

Once the final decree has been entered, an adoption will not ordinarily be set aside for a biological parent who wants to revoke a consent that was validly given in the first instance and was not induced by fraud or duress. Because of the state's interest in promoting and protecting legal and emotional ties within a new adoptive family, strict limits on the scope and timing of post-decree challenges are common. A court will usually refuse to set aside the decree even if there have been irregularities in the form or execution of the consent or other procedural defects.

Contests Initiated by a Biological Parent Who Claims Valid Notice of the Adoption Was Never Given

Notice and an opportunity to be heard are required by the Due Process Clause of the Fourteenth Amendment, and an adoption may be contested if those persons affected by the decree of adoption did not receive reasonable notice and an opportunity to be heard, either in an earlier proceeding to terminate parental rights or, where there has been no prior termination proceeding, in the adoption proceeding itself.

Consent documents signed by biological parents frequently contain waivers of the right to receive notice, and if the right is knowingly and voluntarily waived, the failure to give notice presents no constitutional violation. Absent a waiver, however, notice of the proceeding is constitutionally required if the parental rights will be terminated in the adoption proceeding itself. Notice must be given to the mother of a child born out-of-wedlock and to both biological parents of a child born within a marriage. If the parent of the child is incompetent, notice may have to be given to the child's guardian.

If the parental rights have been involuntarily terminated in a prior judicial proceeding or if the parents have voluntarily terminated their rights in a judicial proceeding for relinquishment, the biological parents need not be given notice of the adoption proceeding. A parent who has voluntarily consented to the adoption is generally not entitled to receive notice of the adoption proceeding.

The father of a child born out-of-wedlock may be entitled to notice of an adoption. In addition to biological parents, certain substitute caregivers for a child, including long-term foster parents or grandparents and others with court-ordered visitation privileges, may be entitled to notice of an adoption. However, it may be appropriate to deny notice and a hearing to a foster parent who has only been given temporary custody of the child by a state agency, particularly where the state seeks to return the child to the biological parent.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.