Adoption FAQ

Under California law, only licensed California agencies and the child's legal parent(s) can place a child for adoption. That decision can not be delegated to anyone else: not to an attorney, therapist, medical professional, family member, facilitator, etc.

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. 

It depends...Each legal situation related to birth parent rights must be independently evaluated by competent legal counsel, such as an ACAL attorney. It is impossible to provide answers to all possible scenarios. With that caveat, the following is some general information about birth father rights in California.

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 can be reluctant to grant an adoption when the birth mother refuses to disclose the name of the 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.

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

Since every situation cannot be addressed in this short answer, every parent who is considering an adoption plan for his or her child should be represented by independent legal counsel who can evaluate the specific facts and provide legal advice appropriate to that parent's situation.

With that caveat, the following information generally applies to most adoptions completed pursuant to current California law.

For adoption of a newborn, the most common time to sign an independent adoption consent or agency adoption relinquishment is within the first week of the child's life.  For older children, or cases where the child has been abandoned by one or both parents, the timelines can vary greatly.

A legal parent has the right to parent his or her child until that parent's consent to an independent adoption, or relinquishment for an agency adoption becomes irrevocable. This is true even if the child has already been placed with the adopting family. An independent adoption consent becomes irrevocable on the 31st day after signing. A relinquishment to a licensed adoption agency becomes irrevocable ten business days after the agency files it with the Department of Social Services in Sacramento.

After the consent or relinquishment becomes irrevocable, the signing parent can petition the court to set aside the consent or the relinquishment. Because the grounds for such actions are limited to fraud, duress or incompetency of the birth parent when signing, such petitions are rarely pursued, and even less rarely granted. This is another good reason for each placing parent to be represented by independent legal counsel to ensure that the placing parent is making a legally informed and voluntary decision to complete the adoption plan.

It is legal in California for the adopting family to pay the pregnancy related living expenses for the birth mother.  This Academy has 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. 

Urban legends about birth mothers making a fortune by placing their babies for adoption are just that -- stories with little to no basis in fact in the vast majority of situations.

It is legal and also customary in California for the adopting family to pay the pregnancy-related medical expenses of the birth mother, to the extent these are not covered by mother's insurance or public benefits. 

Under California law, a placing parent has the right to request representation by independent legal counsel in any adoption, whether agency or indepenent, at no cost to that placing parent. 

In an independent adoption, the placing parent has a statutory to right to payment of up to $500 in legal expenses related to independent representation. 

However, the custom and practice in California is that the adopting family pays the fees for their own legal representation, as well as all reasonable costs for independent legal representation for the placing parent in relation to the adoption plan. If the placing parent terminates the adoption plan, the adopting parents are no longer expected to pay for the (formerly) placing parent's legal fees. 

If an adoption becomes contested in court, the court has the authority to order any party to pay the fees for any other party, in the interests of justice. The court may also (and usually does) appoint counsel at the expense of the county for contesting birth parents who cannot afford legal counsel.

No. Under California law, the birth mother may release the child from the hospital directly to the adopting parents. An exception may be when a child welfare agency steps in to take custody due to certain risk factors, such as the child or mother being pos-tox at the time of birth, a prior CPS history, or the like. 

In the vast majority of cases, if the birth mother makes an advance adoption plan with a family who has an approved adoption home study, CPS will not take the child into foster care. However, even if the child is taken into foster care, the birth mother, with assistance from her attorney and a licensed adoption agency, can apply to the court to have the child released from foster care into the custody of her selected adopting family. If this is done very quickly after the birth, the vast majority of such petitions are granted, so that the child doesn't remain in foster care.

However, the best way to avoid foster care for your child is to make a lawful adoption plan prior to the child's birth. An ACAL attorney can refer you to a licensed California adoption agency that is legally authorized by the Adoptions Branch of the California Department of Social Services to match you with the right family for your child!

Contact with the adopting family is completely optional and at the discretion of both the placing parent and the adopting family. Most placing parents talk to the adopting parents on the phone to ask questions and decide which family to select for placement. Usually before the birth of the child, the birth mother meets the adopting family in person.

Various forms of continuing contact after the adoption may be agreed upon by the birth mother and the adopting family. Once a placing parent has been lawfully matched by a licensed California adoption agency, an ACAL attorney can represent either side in negotiating and drafting a Post-Adoption Contact Agreement, the enforceablility of which will depend on the laws of the state where the adoption is finalized.