The issue of consent can be very important matter when it comes to finalizing an adoption in Arizona. While some states handle the question of consent differently, Arizona has specific rules regarding parental consents for the adoption of their biological children.
Is Consent Required?
It is the ideal adoption situation for the birth parent(s) to give consent for the adoption. It makes the process much easier and definitely cheaper for the potential adoptive parents, as none of them want to really go through a contested adoption matter.
However, adoptions can and do often occur with the involuntary termination of the biological parent’s rights. The biological parents can provide consent to adoption at any time prior to that final adoption hearing. This is encouraged as that leaves open the door for potential open adoption conditions and future communication with their birth child.
When Can Consent Be Obtained?
Many states require a waiting period before consent for adoption can be obtained. In the State of Arizona the consents can be signed as soon as 72 hours after the child’s birth, but not a minute prior to that 72 hour rule. This rule for consent is the same for any biological parent (mother or father).
Many potential adoptive parents fear that the biological mother will change her mind once the consent is signed and that the adoption can be revoked. That situation is extremely rare.
Once the Arizona consent is signed, it is irrevocable unless the birth mother can show that the consent was signed under duress, undue influence or fraud.
If she has signed her consent with her own attorney, it is nearly impossible to successfully claim that there was duress, undue influence or fraud. This is one of the many reasons that it is so important to ensure the birth mother has her own legal representation.
The Indian Child Welfare Act, however, does allow a parent who qualifies under the act, to withdraw consent prior to the entry of a final Termination of Parental Rights or adoption order. However, these circumstances are likewise limited in scope and occurrence. Anytime the Indian Child Welfare Act applies to a case, an attorney with special knowledge in this area should be retained.
Consent of the Birth Mother
Under Arizona adoption law, the birth mother is the main decision-maker regarding the adoption, even if the birth mother is under the age of 18 years old. If a birth mother is under the age of 18 years old, a consent from her own parents is not needed. The birth mother is typically the person who consents to the adoption, unless her rights have already been involuntarily terminated or the birth mother is deceased.
Consent of the Father
Ideally, the biological father will support the adoption decision, but this is not always the case. Many times, the birth fathers are not involved in the pregnancy at all, may not be supportive of the birth mother’s decision, or may not know of the pregnancy.
An adoption without the consent of the father is possible, but it does depend on the specific facts of the case.
Generally, the only time the consent is absolutely required is if the birth father was married to the birth mother in the 10 months before the birth of the child or if the mother names him as the father. Both of these circumstances would make the father the “legal father” of the child. In these situations, the father must consent to the adoption, even if he knows he is not technically the biological father.
Consent is not required from a potential father, who does not meet the above circumstances, who fails to file and serve the biological mother a paternity complaint within 30 days of receiving official notice of the adoption, as outlined in A.R.S. § 8-106(G) & (I). This 30-day requirement is strict in the deadline the potential father must meet to be able to file a paternity complaint.
Additional Consent Needed
In some situations, additional consents may be needed, in addition to the birth mother and birth father. If the court has previously appointed a guardian over the child, and that guardianship still exists, the consent of that guardian may be needed.
If the child is over the age of 12-years-old, the child’s consent will generally be needed, and this consent is normally given by the adolescent child in open court before the adoption judge. The situation is not as intimidating as it sounds. It is simply a time for the judge to ask the child what his or her thoughts are on the adoption and what that child wants.
Children of this age generally want to be involved in the process. Arizona law recognizes that their age means that their opinion does matter a great deal.
Lastly, if the adoption stems out of a child welfare situation, the consent of the agency/division in charge of the child’s welfare case may similarly be needed.
If You Are Thinking Adoption, Contact Stuart & Blackwell Today
At Stuart & Blackwell, we understand just how stressful the adoption process can be. We’re here to help you find the path to adoption that’s right for you. Every adoption is as unique as the adoptive parents themselves, but the journey doesn’t have to be harrowing.
We specialize in Arizona adoption law, and we have the experience, knowledge, and compassion to help you welcome your child into your loving home. Contact us at (480) 420 2900 today for your free consultation.