Regarding Adoption

Who makes the decision as to which family adopts the child?

You, the birth parent, do!  Under California law, only agencies and birth parents can  place a child for adoption.  That decision can not be delegated to anyone; not to an attorney, doctor, grandmother, etc.

What if birth mother lives in a different state than the adoptive family?

With very few exceptions for close relatives, this situation will require compliance with the Interstate Compact on the Placement of Children (ICPC). The purpose of the ICPC is to protect children from being trafficked across state lines. Compliance with the ICPC requires work in both states. The birth mother's (and child's) home state will be the "sending state:" the adoptive family's home state will be the "receiving state."

An adoption attorney or adoption agency in the sending state must put together a packet of information, including the family's home study, the child's medical records, the consent or relinquishment documents, and other records that verify the legitimacy of the adoptive placement. This packet of information is delivered to the sending state's ICPC Compact Administrator with an explanatory cover letter and completed ICPC Form 100A. 

The sending state's administrator reviews the packet for completion and accuracy before forwarding it to the receiving state's ICPC administrator. When the receiving state's administrator confirms that all of the required documentation is in the packet, that administrator will issue an authorization for the child to travel home with the adoptive parents.

Because ICPC clearance can take a significant amount of time (several weeks in some cases), birth parents and adoptive families should not wait until the last minute to obtain assistance with ICPC requirements.  Also, failure to comply with the ICPC can result in monetary fines or even a requirement that the child be returned to the sending state until compliance has been fulfilled.

For these reasons, it is important for all of the parties in an interstate adoption to be represented by competent legal counsel, or licensed adoption agencies, or both. 

 

What are the rights of the father of the child?

It depends...California law separates fathers into two categories, the presumed father and the alleged father.  If the birth mother is married (or the baby was born within 300 days of her divorce), her husband (or ex-husband) is the "presumed" father of the child.  A father can also be a presumed father if he took the child into his home, supported the child, and held the child out to be his own.  There are a few other instances where a man may be a presumed father.

A presumed father MUST receive notice of the adoption.  In most cases, the actual and presumed father is entitled to custody of the child, so his consent to the adoption is necessary.  If the presumed father is not the actual father, he still must receive notice (either by personal service or publication), but we may be able to rebut the presumption of paternity so his consent to the adoption would not be necessary.

An alleged father is generally someone to whom the birth mother is not married.  An alleged father is entitled to official notice that he is alleged to be the father of the child and that the child is an subject of an adoption proceeding.  He has 30 days after service of the notice or the birth of the baby, whichever is latest, to file an action to prove that there is a father-child relationship and to ask for custody.  Should he only file an action without having made support payments to the birth mother, etc., he has no greater rights to the child than the adopting parents.  If he does not respond to the notice within the statutory time, then the court can terminate his parental rights, if any.  He may also consent to the adoption or waive any rights he has before the birth of the child, or he may consent to the adoption following the birth of the child.

California Supreme Court cases In re Kelsey S. and Adoption of Michael H. hold that if the alleged father does everything that he could to legitimate the child, including efforts to support the mother through pregnancy, acknowledging that he is the father, and doing everything that he could to hold himself out to be the father, he may be given the same rights as a presumed father.  For this reason, California courts have become very reluctant to grant an adoption when the birth mother refuses to disclose the name of the father.  They reason that the alleged father, if known, must receive notice or be given an opportunity to be heard, and without notice, they will not be comfortable terminating parental rights because the birth father may well fit the Kelsey scenario.

What happens if there may be more than one possible father and the birth mother is unsure of the identity of the biological father?

In California, the court can terminate the rights of as many men as may potentially be the father.  If the birth mother knows of three possible fathers, all three of those men should receive notice of the alleged paternity.

What if the birth mother does not know who the father is, or where he lives?

In California, the court can terminate the rights of an alleged father without notice to him, if his name and/or address is unknown. The court will rely on the birth mother's affidavit of paternity signed under penalty of perjury, as well as on the attorney's due diligence in trying to find him.

What are the birth mother's rights both before and after the consent is signed?

The birth mother has the right to parent her child until her consent to the adoption becomes irrevocable.  (This is true even if she has already placed the child with the adopting family.)  In the case of the adoption of the newborn, the most common time of signing the consent is within the first week of the child's life.  It becomes irrevocable on the 31st day after signing.  The birth mother can also sign a relinquishment with an a licensed adoption agency.  Some adopting families work with an agency in addition to their attorney.  A relinquishment becomes irrevocable when it is accepted by the Department of Social Services in Sacramento.

After the consent or relinquishment becomes irrevocable, the birth mother can petition the court to overturn the documents.  The grounds for such actions are limited to fraud, duress or incompetency of the birth parent when signing, and very few consents or relinquishments are overturned.

What living expenses can be paid on behalf of a birth mother?

It is legal in California for the adopting family to pay the pregnancy related living expenses for the birth mother.  The Academy of California Adoption Lawyers developed guidelines that have been accepted and utilized by judges throughout the state in determining appropriate support.  Under those guidelines, the adopting parents can generally pay the birth mother's rent, utilities, food and other expenses during the last trimester and six to eight weeks post-partum (depending upon whether the delivery was vaginal or C-section). Follow this link to those statutes on this site.

It is a crime (adoption fraud and/or against anti-slavery statutes) for a birth mother to receive a lump payment not connected with actual expenses or for her to receive extraordinary "gifts" such as a new car.  The well-known "stories" about birth mothers making a fortune by placing their babies for adoption are just that--stories.

Who pays the doctor's bill?

It is legal in California for the adopting family to pay the pregnancy related living expenses for the birth mother.  The Academy of California Adoption Lawyers developed guidelines that have been accepted and utilized by judges throughout the state in determining appropriate support.  Under those guidelines, the adopting parents can generally pay the birth mother's rent, utilities, food and other expenses during the last trimester and six to eight weeks post-partum (depending upon whether the delivery was vaginal or C-section).

It is a crime (adoption fraud and/or against anti-slavery statues) for a birth mother to receive a lump payment not connected with actual expenses or for her to receive extraordinary "gifts" such as a new car.  The well-known "stories" about birth mothers making a fortune by placing their babies for adoption are just that--stories.

Who pays the attorney's bill?

The adopting parents pay the attorney's bill and if a birth parent has an attorney the fee of that attorney is also paid by the adopting parents in the manner prescribed by law.

Does my baby have to go into foster care?

No. Under California law, if the birth mother wishes the child usually may be released from the hospital directly to the adopting parents.

What type of contact may the birth mother have with the adopting family?

Contact with the adopting family is completely optional and at the discretion of both the birth mother and the adopting family. Most birth mothers talk to the adopting parents on the phone to get the majority of their questions answered. Usually before the birth of the child, the birth mother meets the adopting family. Continuing contact may be agreed upon by the birth mother and the adopting family, and most birth mothers request letters and pictures after the birth of the child.