Adoption Rights of a Contesting Biological Parent

Brett Snider

In a heart-wrenching case before the Supreme Court on Tuesday, a young girl’s biological father fought for custody of his daughter on the strength of the Indian Child Welfare Act. The biological father argues that this legislation prevents his parental rights from being denied and enables the court to undo the girl’s adoption by a South Carolina couple.

It is fairly common to have a distant father return suddenly to block an otherwise straightforward adoption. Any future parent wishing to go forward with adopting a child should consider the following.

Consent of Birth Parents

Usually, adoptions require the consent of both birth parents, with some exceptions.

Sometimes getting the other birth parent to give their consent to an adoption can be tricky, as it means that person will be giving up all parental rights to the child.

When a stubborn birth parent refuses to offer consent to the adoption, you can ask the court to terminate his or her parental rights. Once they are terminated, you no longer need that person’s consent to adopt.

Terminating Parental Rights

There are three main ways you can terminate a birth parent’s parental rights:

1) Abandonment

Prove that the birth parent abandoned the child by not communicating or paying child support.

2) Unfit Parent

Prove that the birth parent is unfit to be a parent to the child in a fitness hearing.

Typically this requires evidence that the birth parent is:

  • abusive,
  • neglectful,
  • mentally ill,
  • has substance abuse issues,
  • or incarcerated.

3) “Birth Parent” is Not Actually the Father

Each state has laws which define who is the assumed father of a child by default.

The Illinois Parentage Act assumes the following are the natural father:

  • The husband of the birth mother who conceived the child during the marriage
  • A husband who is named as the father on the child’s birth certificate
  • A man who has signed a paternity acknowledgment with the birth mother
  • A man who has signed a parentage acknowledgment with the birth mother

If the person refusing to give his consent is not the “natural father” by law, then there is no need to seek his consent to adopt the child.

Birth Parent Changes Their Mind

Even if all seems to be going well with the parties in an adoption, there are times when one or more of the biological parents can have a change of heart. Many states allow birth parents to revoke their consent if it was given under duress or if it is in the best interests of the child.

In Illinois, the birth parent cannot revoke consent after signing an agreement to consent to the adoption of the child.

If you have any questions or concerns about adoption consult an adoption attorney in your area.

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Adoption Rights of a Contesting Biological Parent