Latest revision as of 05:24, 14 February 2018

Adoption Laws

Notice: The information contained on this website is for educational purposes only and is not intended to be a substitute for professional legal advice. Always seek the advice of a licensed and qualified professional. While the content of this website is frequently updated, information changes rapidly and therefore, some information may be out of date, and/or contain inaccuracies, omissions or typographical errors.

Consent to Adoption

Who Must Consent to an Adoption Citation: Fam. Code §§ 8603; 8604; 8605

Consent is required from the following persons:

• The birth parents, if living
• The parent having custody if the other parent:
  • Fails to communicate with and support the child
  • Fails to respond to notice of adoption
• The spouse of the adopting parent, if the adopting parent is married

Consent of Child Being Adopted Citation: Fam. Code § 8602

A child age 12 or older must consent to the adoption.

When Parental Consent Is Not Needed Citation: Fam. Code §§ 8604; 8606

The consent of a presumed father is not required for the child’s adoption unless he became a presumed father before the mother’s relinquishment, before consent becomes irrevocable, or before the mother’s parental rights have been terminated.

The consent of a noncustodial parent is not required if the parent willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so for a period of 1 year.

The consent of a birth parent is not necessary when the birth parent has:

• Been judicially deprived of the custody and control of the child
• Voluntarily surrendered the right to the custody and control of the child
• Deserted the child without provision for identification of the child
• Relinquished the child for adoption as provided in § 8700
• Relinquished the child for adoption to a licensed or authorized child-placing agency in another jurisdiction

When Consent Can Be Executed Citation: Fam. Code §§ 8801.3; 8700

In a direct placement, consent may only take place after the discharge of the birth mother from the hospital. If the mother is required to be hospitalized longer than the child, consent may be given with verification of competency from her physician.

Relinquishment to an agency can take place any time after the birth of the child.

How Consent Must Be Executed Citation: Fam. Code §§ 8801.3; 8814; 8700; 8606.5

In a direct placement, consent must take place in the presence of an Adoption Service Provider or other delegated agent who has advised the parents of their rights.

In an agency adoption, a form is signed before two witnesses and acknowledged before an official of the agency.

Consent to adoption given by an Indian child’s parent is not valid unless both of the following occur:

• The consent is executed in writing at least 10 days after the child’s birth and recorded before a judge.
• The judge certifies that the terms and consequences of the consent were fully explained in detail in English and were fully understood by the parent or that they were interpreted into a language that the parent understood.

Revocation of Consent Citation: Fam. Code §§ 8814.5; 8700; 8606.5

In a direct placement, after consent has been given, the parents have 30 days to submit a signed revocation and request the return of the child or sign a waiver of the right to revoke consent.

In an agency adoption, consent is final and may only be rescinded by mutual consent unless the birth parent has specified an adoptive parent and that placement is not finalized; then the parent has 30 days to rescind.

The parent of an Indian child may withdraw his or her consent to adoption for any reason and at any time prior to the entry of a final decree of adoption, and the child shall be returned to the parent.

After the entry of a final decree of adoption of an Indian child, the child’s parent may withdraw consent to the adoption upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate that decree and return the child to the parent; however, no adoption that has been effective for at least 2 years may be invalidated unless otherwise permitted under State law.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents ^[1]

Fingerprint identifications and FBI and State criminal records checks are required for a prospective foster parent and any person, other than a client, residing in the residence.

The department shall determine whether the applicant or any adult member of the applicant’s household has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in § 290 of the Penal Code, for violating §§ 245, 273.5, 273a(b), or 273a(2) of the Penal Code, or for any crime for which the department cannot grant an exemption if the person was convicted and has not been exonerated. These offenses include:

• Offenses for which a person must register with the sex offender registry, including kidnapping, rape, sodomy, sexual battery, child pornography, and child sexual exploitation
• Assault with a deadly weapon
• Infliction of injury on a present or former spouse or cohabitant or parent of a child
• Endangering a child or causing or permitting a child to suffer physical pain, mental suffering, or injury

Prior to granting a license to any individual to care for children, the department shall check the Child Abuse Central Index. The department shall not deny a license based upon a report from the Child Abuse Central Index unless child abuse or severe neglect is substantiated.

For any application received on or after January 1, 2008, if any prospective licensed or certified foster parent or any person age 18 or older residing in their household has lived in another State in the preceding 5 years, the licensing agency shall check that State’s child abuse and neglect registry.

If any person in the household is age 18 or older and has lived in another State in the preceding 5 years, the department shall check the other State’s child abuse and neglect registry to the extent required by Federal law prior to granting a license to, or otherwise approving, any foster family home.

Requirements for Adoptive Parents Fam. Code §§ 8712; 8730; 8811; 8908

Fingerprinting and a criminal records check of a prospective adoptive parent are required as part of the investigation for agency adoptions, independent adoptions, and intercountry adoptions.

The department or licensed adoption agency shall require each person filing an application for adoption to be fingerprinted and shall secure from an appropriate law enforcement agency any criminal record of that person to determine whether the person has ever been convicted of a crime other than a minor traffic violation. The department or licensed adoption agency also may secure the person’s full criminal record, if any.

The department or licensed adoption agency shall submit fingerprints and related information with any Federal-level criminal offender record requests to the Department of Justice. The Department of Justice shall forward the request to the FBI to obtain information as to the existence of a record of an out-of-State or Federal conviction or arrest or Federal crimes or arrests for which the person is free on bail pending trial or appeal.

The criminal record, if any, shall be taken into consideration when evaluating the prospective adoptive parent, and an assessment of the effects of any criminal history on the ability of the adoptive parent to provide adequate and proper care and guidance to the child shall be included in the report to the court.

Under no circumstance shall an adoptive placement be approved when the prospective adoptive parent or any adult living in the home has either of the following:

• Any felony conviction for child abuse or neglect; spousal abuse; crimes against a child, including child pornography; or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery
• A felony conviction that occurred within the past 5 years for physical assault, battery, or a drug- or alcohol-related offense

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Welf. & Inst. Code §§ 361.5; 366.26

Reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, any of the following:

• The whereabouts of the parent is unknown.
• The parent is suffering from a mental disability that renders him or her incapable of utilizing those services.
• The child or a sibling of the child had been removed from the custody of his or her parent as a result of an adjudication of dependency due to physical or sexual abuse, the child had been returned to the custody of the parent, and the child is being removed again due to additional physical or sexual abuse.
• The parent has caused the death of another child through abuse or neglect.
• The parent has subjected the child under age 5 to severe physical abuse.
• The child has been adjudicated a dependent as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half-sibling by a parent, and the court finds that it would not benefit the child to pursue reunification services with the offending parent or guardian.
• The parent or guardian has been required by the court to be registered on a sex offender registry.

Any of the following circumstances shall constitute a sufficient basis for termination of parental rights:

• A court finds that reunification services shall not be offered.
• The whereabouts of a parent have been unknown for 6 months.
• The parent has failed to visit or contact the child for 6 months.
• The parent has been convicted of a felony indicating parental unfitness.
• The court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services.

Circumstances That Are Exceptions to Termination of Parental Rights Welf. & Inst. Code § 366.26

Parental rights shall not be terminated if:

• The child is living with a relative who is unable or unwilling to adopt the child.
• The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
  • The parents have maintained regular visitation and contact with the child.
  • A child age 12 or older objects to the termination.
  • The child is placed in a residential treatment facility and adoption is unlikely or undesirable.
  • The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances.
  • There would be substantial interference with a child’s sibling relationship.
  • The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interests of the child, including, but not limited to:
    • Termination would substantially interfere with the child’s connection to his or her Tribal community or Tribal membership rights.
    • The child’s Tribe has identified guardianship, long-term foster care with a fit and willing relative, Tribal customary adoption, or another planned permanent living arrangement for the child.
    • The child is a nonminor dependent, and the nonminor and the nonminor’s Tribe have identified Tribal customary adoption for the nonminor.

The court shall not terminate parental rights if the court has found that reasonable efforts were not made or that reasonable services were not offered or provided. In the case of an Indian child:

• The court has found that active efforts were not made.
• The court has not found, beyond a reasonable doubt, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
• The court has ordered Tribal customary adoption.

Circumstances Allowing Reinstatement of Parental Rights Welf. & Inst. Code § 366.26(i)(3)

A child who has not been adopted for at least 3 years after the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the court to reinstate parental rights. The child may file the petition prior to the expiration of this 3-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child and the child stipulate that the child is no longer likely to be adopted.

A child over age 12 shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice to the social worker or probation officer, the child’s attorney, and the child’s Tribe, if applicable. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the child’s former parent or parents.

The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child’s best interests. If the court reinstates parental rights over a child who is younger than age 12 and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interests of the child to reinstate parental rights.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Fam. Code § 8811

Each person filing an adoption petition must be investigated.

Agency or Person Conducting the Study Citation: Fam. Code § 8811

The Department of Social Services or a delegated county adoption agency shall conduct the assessment and investigation.

Qualifications for Adoptive Parents Citation: Fam. Code § 8601

A child may be adopted by an adult who is at least 10 years older than the child. An exception to this requirement may be made if the adoptive parent is a stepparent, sister, brother, aunt, uncle, or first cousin of the child and, if that person is married, is adopting jointly with his or her spouse.

Elements of a Home Study Citation: Fam. Code §§ 8811; 9001

Each person filing an adoption petition must submit fingerprints and obtain from an appropriate law enforcement agency any criminal record to establish whether he or she has ever been convicted of a crime other than a minor traffic violation.

The criminal record, if any, shall be taken into consideration when evaluating the prospective adoptive parent, and an assessment of the effects of any criminal history on the ability of the prospective adoptive parent to provide adequate and proper care and guidance to the child shall be included in the report to the court.

A home study shall be conducted that consists of a physical investigation of the premises where the child will reside.

Grounds for Withholding Approval Citation: Fam. Code § 8811; 8822

Under no circumstances shall the Department of Social Services or a delegated county adoption agency give final approval for an adoptive placement in any home where the prospective adoptive parent or any adult living in the prospective adoptive home has either of the following:

• A felony conviction for child abuse or neglect, spousal abuse, crimes against a child including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide
• A felony conviction that occurred within the past 5 years for physical assault, battery, or a drug- or alcohol-related offense

The department or delegated county adoption agency may find that the home of the petitioners is not suitable for the child and recommend that the petition be denied.

When Studies Must Be Completed This issue is not addressed in the statutes and regulations reviewed.

Postplacement Study Requirements Citation: Calif. DSS Manual, Regs. 35299 through 35309

The agency shall supervise the adoptive placement of the child with the prospective adoptive parent unless the child was adopted abroad. The supervision shall commence when the child is placed with the prospective adoptive parent and continue until a final decree of adoption is granted or the child is removed from the home of the prospective adoptive parent.

The duration of the supervisory period shall be no less than 6 months unless:

• The adoptive parent has successfully completed the adoption of another child in California within the past 5 years.
• The adoptive parent is in the military service of the United States or is employed by the American Red Cross and completion of the 6-month supervisory period would delay completion of an adoption that the agency has determined should be completed.

During the supervisory period, the agency shall provide the following services as needed to the prospective adoptive parent and to the adoptive child so that the child may be integrated successfully into the family:

• Liaisons between the family and schools, mental and physical health agencies, rehabilitation service agencies, and other community resources
• Updates of the psychological and medical history form to reflect any additional information revealed during the supervisory period
• Updates of the assessment of the child to reflect any additional information discovered during the supervisory period

During the supervisory period, the agency shall conduct at least one interview in the home of the prospective adoptive parent with the parent and the adoptive child. The agency shall conduct at least three additional interviews with the prospective adoptive parent unless the duration of the supervisory period has been reduced to less than 6 months.

Exceptions for Stepparent or Relative Adoptions Citation: Fam. Code § 8730; 9001

If the prospective adoptive parent of a child is a relative caregiver who has had an ongoing and significant relationship with the child, an assessment or home study may require only the following:

• A criminal records check
• A determination that the relative caregiver or foster parent has sufficient financial stability to support the child and ensure that any adoption assistance program payment is used exclusively to meet the child’s needs
• A determination that the relative caregiver has not abused or neglected the child while the child has been in his or her care
• A determination that there is not a likelihood that the relative caregiver will abuse or neglect the child in the future
• A determination that the relative caregiver can address racial and cultural issues that may affect the child’s well-being
• An interview with the relative caregiver, each individual residing in the home, and the adopted child

In the case of a stepparent adoption, a probation officer, qualified court investigator, licensed clinical social worker, licensed marriage family therapist, private licensed adoption agency, or, at the option of the board of supervisors, the county welfare department in the county in which the adoption proceeding is pending shall make an investigation and file a report and recommendation with the court. If a private adoption agency conducts the investigation, it shall assign the investigation to a licensed clinical social worker or marriage and family therapist associated with the agency.

Unless ordered by the court, no home study may be required of the petitioner’s home in a stepparent adoption.

Requirements for Interjurisdictional Placements Citation: Fam. Code §§ 7907.5; 7901.1

A child who is born in this State and placed for adoption with a person who is not a resident of this State is subject to the provisions of the Interstate Compact on the Placement of Children, regardless of whether the adoption petition is filed in this State. In interstate placements, this State shall be deemed the sending State for any child born in the State.

Within 60 days of receipt of a request from another State to conduct a study of a home environment for purposes of assessing the safety and suitability of placing a child in the home, a county child welfare agency shall, directly or by contract, do both of the following:

• Conduct and complete the study
• Return a report to the requesting State on the results of the study that addresses the extent to which placement in the home would meet the needs of the child

Foster to Adopt Placements Citation: Fam. Code § 8730

If the prospective adoptive parent of a child is a foster parent with whom the child has lived for a minimum of 6 months, the assessment or home study procedure is the same as for a relative caregiver.

Infant Safe Haven Laws

Infant’s Age Citation: Penal Code § 271.5

A child who is 72 hours old or younger may be relinquished.

Who May Relinquish the Infant Citation: Penal Code § 271.5

The child may be relinquished by his or her parent or other person having lawful custody.

Who May Receive the Infant Citation: Penal Code § 271.5; Health & Safety Code § 1255.7

A child may be left at a safe-surrender site that includes:

• A location designated by the board of supervisors of a county or by a local fire agency, upon the approval of the appropriate local governing body of the agency, to be responsible for accepting physical custody of a child
• A location within a public or private hospital that is designated by that hospital to be a safe-surrender site

Before designating a location as a safe-surrender site, the designating entity shall consult with the governing body of a city, if the site is within the city limits, and with representatives of a fire department and a child welfare agency that may provide services to a child who is surrendered at the site, if that location is selected.

A hospital and a safe-surrender site designated by the county board of supervisors or by a local fire agency, upon the approval of the appropriate local governing body of the agency, shall post a sign displaying a statewide logo that has been adopted by the State Department of Social Services that notifies the public of the location where a child may be safely surrendered.

Responsibilities of the Safe Haven Provider Citation: Health & Safety Code § 1255.7

Personnel at a safe-surrender site shall accept physical custody of the child and ensure that a qualified person does all of the following:

• Places a coded, confidential ankle bracelet on the child
• Offers the parent a copy of the ankle bracelet identification in order to facilitate reclaiming the child
• Offers the parent a medical information questionnaire, which may be declined or may be voluntarily filled out and returned at the time the child is surrendered or later filled out and mailed

Personnel of a safe-surrender site that has physical custody of a minor child shall ensure that a medical screening examination and any necessary medical care are provided to the minor child.

Notwithstanding any other provision of law, the consent of the parent or other relative shall not be required to provide medical care to the minor child.

As soon as possible, but not later than 48 hours after the physical custody of a child has been accepted, personnel of the safe-surrender site that has physical custody of the child shall notify child protective services or a county agency providing child welfare services that the safe-surrender site has physical custody of the child. In addition, any medical information pertinent to the child’s health, including but not limited to information obtained pursuant to the medical information questionnaire that has been received by or is in the possession of the safe-surrender site, shall be provided to that child protective services or county agency. Immunity for the Provider Citation: Health & Safety Code § 1255.7

A safe-surrender site, or the personnel of a safe-surrender site, shall not have liability of any kind for a surrendered child prior to taking actual physical custody of the child. A safe-surrender site, or personnel of the safe-surrender site, that accepts custody of a surrendered child shall not be subject to civil, criminal, or administrative liability for accepting the child and caring for the child in the good-faith belief that action is required or authorized by this section, including but not limited to instances where the child is older than 72 hours or the parent or individual surrendering the child did not have lawful physical custody of the child. A safe-surrender site, or the personnel of a safe-surrender site, shall not be subject to civil, criminal, or administrative liability for a surrendered child prior to the time that the site or its personnel know, or should know, that the child has been surrendered. This subdivision does not confer immunity from liability for personal injury or wrongful death, including but not limited to injury resulting from medical malpractice.

In order to encourage assistance to persons who voluntarily surrender physical custody of a child, no person who, without compensation and in good faith, provides assistance for the purpose of effecting the safe surrender of a minor 72 hours old or younger shall be civilly liable for injury to or death of the minor child as a result of any of his or her acts or omissions. This immunity does not apply to any act or omission constituting gross negligence, recklessness, or willful misconduct.

Protection for Relinquishing Parent Citation: Penal Code § 271.5; Health & Safety Code § 1255.7

No person leaving an infant with a safe haven provider may be prosecuted for abandonment, failure to provide, or desertion.

Any personal identifying information that pertains to a parent or individual who surrenders a child that is obtained pursuant to the medical information questionnaire is confidential and shall be exempt from disclosure by the child protective services or county agency.

Effect on Parental Rights Citation: Health & Safety Code § 1255.7

Child protective services shall assume temporary custody of the child immediately upon receipt of notice of the child’s relinquishment. Child protective services shall immediately investigate the circumstances of the case and file a dependency petition for the child. As soon as possible, but no later than 24 hours after temporary custody is assumed, child protective services shall report all known identifying information concerning the child, except personal identifying information pertaining to the parent or individual who surrendered the child, to the California Missing Children Clearinghouse and to the National Crime Information Center.

If, prior to the filing of a dependency petition, a parent or individual who has voluntarily surrendered a child requests that the safe-surrender site that has physical custody of the child return the child and the safe-surrender site still has custody of the child, personnel of the safe-surrender site shall either return the child to the parent or individual or contact a child protective agency if any personnel at the safe-surrender site knows or reasonably suspects that the child has been the victim of child abuse or neglect.

Subsequent to the filing of a dependency petition, if, within 14 days of the voluntary surrender, the parent or individual who surrendered custody returns to claim physical custody of the child, the child welfare agency shall verify the identity of the parent or individual, conduct an assessment of his or her circumstances and ability to parent, and request that the juvenile court dismiss the petition for dependency and order the release of the child.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Fam. Code § 8812; Penal Code § 273(b)

Any request by a birth parent or birth parents for payment by the prospective adoptive parents of attorney’s fees, medical fees and expenses, counseling fees, or living expenses of the birth mother shall be in writing. The birth parent or parents shall provide the prospective adoptive parents written receipts for any money provided to the birth parent or birth parents. The prospective adoptive parents shall provide the receipts to the court when the accounting report required pursuant to § 8610 is filed.

It is not unlawful to pay or receive the maternity-connected medical or hospital and necessary living expenses of the mother preceding and during confinement as an act of charity, as long as the payment is not contingent upon placement of the child for adoption, consent to the adoption, or cooperation in the completion of the adoption.

Birth Parent Expenses Not Allowed Citation: Penal Code § 273(d)

It is unlawful for the birth mother to accept payments that exceed reasonable maternity-related medical and hospital costs and necessary living expenses.

Allowable Payments for Arranging Adoption Citation: Penal Code § 273(a)

It is unlawful for any person or agency to pay, offer to pay, or to receive money or anything of value for the placement for adoption or for the consent to an adoption of a child. This does not apply to any fee paid for adoption services provided by the State Department of Social Services, a licensed adoption agency, adoption services providers, or an attorney providing adoption legal services.

Allowable Payments for Relinquishing Child Citation: Penal Code § 273(c)-(d)

It is unlawful for any parent to obtain financial benefits with the intent to receive those financial benefits when there is an intent to do either of the following:

• Not complete the adoption
• Not consent to the adoption

It is unlawful for any parent to obtain financial benefits from two or more prospective adopting families or persons if either parent knowingly fails to disclose to those families or persons that there are other prospective adopting families or persons interested in adopting the child, and the parent knows that there is an obligation to disclose that information.

Allowable Fees Charged by Department/Agency Citation: Fam. Code § 8810; Code of Regs., Tit. 22, § 89137

Whenever a petition is filed for the adoption of a child, the petitioner shall pay a nonrefundable fee to the Department of Social Services or to the delegated county adoption agency for the cost of investigating the adoption petition. Payment shall be made to the department or delegated county adoption agency for an amount as follows:

• For petitions filed on and after October 1, 2008, $4,500
• For petitioners who have a valid preplacement evaluation at the time of filing a petition, $1,550 for a postplacement evaluation

The department or delegated county adoption agency may reduce the fee to no less than $500 when the prospective adoptive parents are of very low income, according to the income limits published by the Department of Housing and Community Development, and making the required payment would be detrimental to the welfare of an adopted child. The department shall develop additional guidelines to determine the financial criteria for waiver or reduction of the fee.

In regulation: A fee of $500 shall be charged by a public adoption agency. A county adoption agency or the department may waive, defer, or reduce the fee when its payment would cause economic hardship to the adopting parents, would be detrimental to the adopted child, or if necessary to obtain the placement of a hard-to-place child. If the fee is waived, reduced, or deferred, the case record shall reflect the basis upon which the decision is made.

No private adoption agency shall charge or collect any fee for its services unless and until it has submitted to and obtained the approval of the department with respect to both the maximum fee that may be charged and the agency’s fee payment plan.

Accounting of Expenses Required by Court Citation: Fam. Code § 8610

The petitioners in an adoption proceeding shall file with the court a full accounting report of all disbursements of anything of value made or agreed to be made by them or on their behalf in connection with the birth of the child, the placement of the child with the petitioners, any medical or hospital care received by the child’s birth mother or the child in connection with the child’s birth, any other expenses of either birth parent, or the adoption. The accounting report shall be made under penalty of perjury and shall be submitted to the court on or before the date set for the hearing on the adoption petition, unless the court grants an extension of time.

The accounting report shall be itemized in detail and shall show the services relating to the adoption or to the placement of the child for adoption that were received by the petitioners, either birth parent, the child, or any other person for whom payment was made by or on behalf of the petitioners. The report shall also include the dates of each payment, and the names and addresses of each attorney, physician and surgeon, hospital, licensed adoption agency, or other person or organization that received any funds in connection with the adoption or the placement of the child.

This section does not apply to an adoption by a stepparent when one birth parent or adoptive parent retains custody and control of the child.

The Rights of Unmarried Fathers

Legal Definition of Father Family Code §§ 7601; 7611

‘Parent and child relationship’ means the legal relationship existing between a child and the child’s natural or adoptive parents on which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship.

A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with § 7540) or Chapter 3 (commencing with § 7570) of Part 2 or any of the following:

• He and the child’s natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, divorce, or after a judgment of separation is entered by a court.
• Before the child’s birth, he and the child’s natural mother have attempted to marry each other, although the attempted marriage is or could be declared invalid, and either of the following is true:
  • If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
  • If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
• After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other, although the attempted marriage is or could be declared invalid, and either of the following is true:
  • With his consent, he is named as the child’s father on the child’s birth certificate.
  • He is obligated to support the child under a written voluntary promise or by court order.
• He receives the child into his home and openly holds out the child as his natural child.

Paternity Registry Family Code §§ 7571; 7573

On and after January 1, 1995, upon the event of a live birth, prior to an unmarried mother leaving any hospital, the person responsible for registering live births shall provide to the natural mother and shall attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father, a voluntary declaration of paternity together with the written materials described in § 7572. Staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed. A copy of the declaration shall be made available to each of the attesting parents.

Except as provided in §§ 7575, 7576, and 7577, a completed voluntary declaration of paternity that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.

Alternate Means to Establish Paternity Family Code §§ 7551; 7555; 7631; 7635.5

In a civil action or proceeding in which paternity is a relevant fact, the court may order the mother, child, and alleged father to submit to genetic tests. A party’s refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity.

There is a rebuttable presumption of paternity if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence.

A man who is not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child if the mother consents to or proposes to relinquish the child for adoption. An action under this section shall be brought within 30 days after the man is served with a notice that he is or could be the father of the child or the birth of the child, whichever is later. The commencement of the action suspends a pending proceeding in connection with the adoption of the child until a judgment in the action is final.

In any action brought pursuant to this article, if the alleged father is present in court for the action, the court shall inform the alleged father that he has the right to have genetic testing performed to determine if he is the biological father of the child. The court shall further inform the alleged father of his right to move to set aside or vacate a judgment of paternity within 2 years of the date he received notice of the action to establish paternity and that after that time has expired he may not move to set aside or vacate the judgment of paternity, regardless of whether genetic testing shows him not to be the biological father of the child.

Required Information Family Code § 7574

The voluntary declaration of paternity shall be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups. The form described in subdivision (a) shall contain, at a minimum, the following:

• The name and the signature of the mother
• The name and the signature of the father
• The name of the child
• The date of birth of the child
• A statement by the mother that she has read and understands the written materials described in § 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity
• A statement by the father that he has read and understands the written materials described in § 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity
• The name and the signature of the person who witnesses the signing of the declaration by the mother and the father

Revocation of Claim to Paternity Family Code § 7575

Either parent may rescind the voluntary declaration of paternity by filing a rescission form with the Department of Child Support Services within 60 days of the date of execution of the declaration by the attesting father or attesting mother, whichever signature is later, unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party.

If the court finds that the results of genetic tests show that the man who signed the voluntary declaration is not the father of the child, the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interests of the child.

If the voluntary declaration of paternity is set aside, the court shall order that the mother, child, and alleged father submit to genetic tests. If the court finds that the conclusions of the genetic tests are that the person who executed the voluntary declaration of paternity is not the father of the child, the question of paternity shall be resolved accordingly. If the person who executed the declaration of paternity is ultimately determined to be the father of the child, any child support that accrued under an order based upon the voluntary declaration of paternity shall remain due and owing.

Access to Information

This issue is not addressed in the statutes reviewed.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Family Law § 8609(a)

No person or organization may advertise in any periodical or newspaper or by radio or other public medium that he, she, or it will place or provide children for adoption or cause any advertisement to be published in any public medium soliciting, requesting, or asking for any child or children for adoption, unless that person or organization is licensed to place children for adoption by the department.

Use of Intermediaries/Facilitators Citation: Family Law §§ 8623 through 8638

An adoption facilitator is a person or organization not licensed as an adoption agency that charges a fee for rendering services related to an adoption or that advertises for the purpose of soliciting parties to an adoption, locating children for an adoption, or acting as an intermediary to an adoption.

Requirements for adoption facilitators include:

• Any advertising must disclose the identity of the facilitator and make clear that it is not an adoption agency.
• Parties must be provided a description of services.
• Any written contract must be verbally explained to the prospective adoptive parents and the birth parents.
• Adopting parents must be given in writing all information provided by the birth parents about the child.
• Fees and expenses paid must be reported to the court.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Family Code §§ 8600; 8601; 9326

A child may be adopted by an adult who is at least 10 years older than the child. An exception to this requirement may be made if the adoptive parent is a stepparent, sister, brother, aunt, uncle, or first cousin of the child and, if that person is married, is adopting jointly with his or her spouse.

The provider of board and care, treatment, habilitation, or other services to persons with developmental disabilities of a spouse or employee of a provider may adopt.

Who May Be Adopted Citation: Family Code §§ 8600; 9300; 9302; 9320; 9326

The following adoptions are permitted:

• An unmarried minor may be adopted by an adult.
• An adult, including a stepparent, may adopt another adult who is younger, except for the spouse of the prospective adoptive parent.
• A married minor who is either legally separated or whose spouse has given consent to the adoption may be adopted.
• A developmentally disabled adult may be adopted.

Who May Place a Child for Adoption Citation: Family Code §§ 8801.5; 8704

A child may be placed by any of the following:

• The child’s birth parent(s) in an independent adoption
• A licensed adoption agency or the department that has custody of the child

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Fam. Code § 9202; 9203

Nonidentifying information is available to:

• The adopted person who is age 18 or older
• The adoptive parent of an adopted person who is under age 18

Identifying information is available to:

• The adopted person who is age 21 or older
• The birth parent of an adult adopted person
• The adoptive parent of an adopted person who is under age 21

Access to Nonidentifying Information Citation: Fam. Code §§ 8706; 8817; 9202

Nonidentifying information about the birth parents and adopted person, such as medical history, scholastic information, psychological evaluations, and developmental history, is provided to the adopting parents.

The department or licensed adoption agency shall provide a copy of the medical report, in the manner the department prescribes by regulation, to any of the following persons upon the person’s request:

• A person who has been adopted who is at least age 18 or presents a certified copy of the person’s marriage certificate
• The adoptive parent of a person under age 18

A person who is denied access to a medical report may petition the court for review of the reasonableness of the department’s or licensed adoption agency’s decision.

The names and addresses of any persons contained in the report shall be removed unless the person requesting the report has previously received the information.

Mutual Access to Identifying Information Citation: Fam. Code §§ 9201; 9203; 9205; 9206

The adopted person who is 21 or older may request the release of the identity of his or her birth parents and their most current address shown in the records of the department or licensed adoption agency if the birth parent or parents have indicated consent to the disclosure in writing.

The birth parent may request disclosure of the name and most current address of the adopted person if the adopted person is age 21 or older and has indicated in writing that he or she wishes his or her name and address to be disclosed.

The adoptive parent of an adopted person under age 21 may request disclosure of the identity of a birth parent and the birth parent’s most current address shown in the records if the department or licensed adoption agency finds that a medical necessity or other extraordinary circumstances justify the disclosure.

If an adult adopted person and the birth parents have each filed a written consent with the department or licensed adoption agency, the department or agency may arrange for contact between those persons.

Information about a birth sibling may be released to another sibling provided both are age 21 or older and have provided a written waiver.

Photos or letters and other personal property may be released upon request if the adopted person is age 18 or older and other conditions have been met.

Access to Original Birth Certificate Citation: Health & Safety Code § 102705

The original birth certificate is available only by order of the court.

Where the Information Can Be Located

• California Department of Social Services, Adoptions Support Unit
• The licensed agency involved in the adoption

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Prob. Code §§; 6450; 6451

A relationship of parent and child exists for the purposes of determining intestate succession by, through, or from a person between a person and the person’s birth parents, regardless of the marital status of the birth parents.

An adoption severs the relationship of parent and child between an adopted person and a birth parent of the adopted person unless both of the following requirements are satisfied:

• The birth parent and the adopted person lived together at any time as parent and child, or the birth parent was married to or cohabiting with the other birth parent at the time the person was conceived and died before the person’s birth.
• The adoption was by the spouse of either of the birth parents or after the death of either of the birth parents.

Neither a birth parent nor a relative of a birth parent, except for a wholeblood brother or sister of the adopted person or the issue of that brother or sister, inherits from or through the adopted person on the basis of a parent and child relationship between the adopted person and the birth parent that satisfies the requirements listed above, unless the adoption is by the spouse or surviving spouse of that parent.

A prior adoptive parent and child relationship is treated as a birth parent and child relationship.

Adoptive Parents in Relation to Adopted Person Citation: Prob. Code § 6450

A relationship of parent and child exists for the purpose of determining intestate succession by, through, or from a person between an adopted person and the person’s adopting parent or parents.

Adopted Persons Who Are Not Included in a Will Citation: Prob. Code §§ 21115; 21620

Except as provided below, adopted persons and the issue of these persons, when appropriate to the class, are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession.

If a decedent fails to provide in his or her will for a child who was adopted after the execution of the will, the omitted child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died intestate.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The terms of any postadoption contact agreement shall be limited to, but need not include, all of the following:

• Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings, and the child’s Indian Tribe if the case is governed by the Indian Child Welfare Act
• Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both, and in cases governed by the Indian Child Welfare Act, the child’s Indian Tribe
• Provisions for the sharing of information about the child in the future

The terms of any postadoption contact agreement shall be limited to the sharing of information about the child unless the child has an existing relationship with the birth relative.

A postadoption agreement shall contain the following warnings in bold type:

• After the adoption petition has been granted by the court, the adoption cannot be set aside due to the failure of an adopting parent, a birth parent, a birth relative, an Indian Tribe, or the child to follow the terms of this agreement or a later change to this agreement.
• A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.
• A court will not act on a petition to change or enforce this agreement unless the petitioner has participated, or attempted to participate, in good faith mediation or other appropriate dispute resolution proceedings to resolve the dispute.

When a court orders that a dependent child be placed for adoption, nothing in the adoption laws of this State shall be construed to prevent the prospective adoptive parent or parents of the child from expressing a willingness to facilitate postadoptive sibling contact.

Who may be a party to a postadoption contact agreement? Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The following persons may be parties to a postadoption contact agreement:

• The adopting parent or parents
• The birth relatives, including the birth parent or parents
• The child
• In cases governed by the Indian Child Welfare Act, the child's Indian Tribe

The child who is the subject of the adoption petition shall be considered a party to the postadoption contact agreement. A child who is age 12 or older must consent in writing to the terms and conditions of the postadoption contact agreement and any subsequent modifications unless the court finds by a preponderance of the evidence that the postadoption agreement, as written, is in the best interests of the child.

What is the role of the court in postadoption contact agreements? Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

At the time of an adoption decree, the court entering the decree may grant postadoption privileges if an agreement for those privileges has been entered into, including agreements entered into pursuant to § 8620(f) [pertaining to agreements between an Indian child and the child’s Tribe].

Upon the granting of the adoption petition and the issuing of the order of adoption of a child who is a dependent of the juvenile court, juvenile court dependency jurisdiction shall be terminated. Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption.

The court may not set aside an adoption decree, rescind a relinquishment, or modify an order to terminate parental rights because of the failure of any party to comply with the original terms of, or subsequent modifications to, the agreement. Exceptions are as follows:

• Prior to issuing the adoption order involving an Indian child and upon a petition of the birth or adoptive parents, birth relatives, or an Indian Tribe, the court may order the parties to engage in family mediation services to reach an agreement if the prospective adoptive parent fails to negotiate in good faith after having agreed to enter into negotiations.
• Prior to issuing the adoption order involving an Indian child, if the parties fail to negotiate in good faith to enter into an agreement during the negotiations entered into pursuant to the above paragraph, the court may modify prior orders or issue new orders as necessary to ensure the best interests of the Indian child is met. This includes, but is not limited to, requiring parties to engage in further family mediation services to reach an agreement, initiating guardianship proceeding in lieu of adoption, or authorizing a change of adoptive placement for the child.

Are agreements legally enforceable? Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption. The court may not order compliance with the agreement absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action, and that the enforcement is in the best interests of the child.

Documentary evidence or offers of proof may serve as the basis for the court’s decision regarding enforcement. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the child’s home to the detriment of the child.

The court may not award monetary damages as a result of the filing of the civil action [for enforcement of the agreement].

How may an agreement be terminated or modified? Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

A postadoption contact agreement may be modified or terminated only if either of the following occurs:

• All parties, including the child if the child is age 12 or older at the time of the requested termination or modification, have signed a modified postadoption contact agreement and the agreement is filed with the court that granted the petition of adoption.
• The court finds all of the following:
  • The termination or modification is necessary to serve the best interests of the child.
  • There has been a substantial change of circumstances since the original agreement was executed and approved by the court.
  • The party seeking the termination or modification has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings prior to seeking court approval of the proposed termination or modification.

If, following entry of an order for sibling contact, the adoptive parent(s) determine that sibling contact poses a threat to the health, safety, or well-being of the adopted child, the adoptive parent(s) may terminate the sibling contact, provided that the adoptive parent(s) must submit written notification to the court within 10 days after terminating the contact. The notification must state to the court the reasons why the health, safety, or well-being of the adopted child would be threatened by continued sibling contact.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Family Code § 8925 A Hague adoption certificate or, in outgoing cases, a Hague custody declaration, obtained pursuant to part 97 of title 22 of the Code of Federal Regulations, shall be recognized as a final valid adoption for purposes of all State and local laws.

Readoption After an Intercountry Adoption

Family Code § 8919(a)-(c)

Each State resident who adopts a child through an intercountry adoption that is finalized in a foreign country shall readopt the child in this State if it is required by the U.S. Department of Homeland Security. The readoption shall include, but is not limited to, at least one postplacement in-home visit, the filing of the adoption petition, the intercountry adoption court report, accounting reports, the home study report, and the final adoption order. If the adoptive parents have already completed a home study as part of their adoption process, a copy of that study shall be submitted in lieu of a second home study. No readoption order shall be granted unless the court receives a copy of the home study report previously completed for the international finalized adoption by an adoption agency authorized to provide intercountry adoption services pursuant to § 8900. The court shall consider the postplacement visit or visits and the previously completed home study when deciding whether to grant or deny the petition for readoption.

Each State resident who adopts a child through an intercountry adoption that is finalized in a foreign country may readopt the child in this State. Except as provided below, the readoption shall meet the standards described above.

A State resident who adopts a child through an intercountry adoption that is finalized in a foreign country with adoption standards that meet or exceed those of this State, as certified by the State Department of Social Services, may readopt the child in this State. The readoption shall include one postplacement in-home visit and the final adoption order.

Application for a U.S. Birth Certificate

Family Code § 8919(c); Health and Safety Code §§ 102635; 103450(a)

In addition to the requirement or option of the readoption process set forth in § 8919 of the Family Code, each State resident who adopts a child through an intercountry adoption that is finalized in a foreign country may obtain a birth certificate in the State of California in accordance with the provisions of § 102635 or § 103450(a) of the Health and Safety Code.

A new birth certificate shall be established by the State Registrar upon receipt of either of the following:

• A report of adoption from any court of record that has jurisdiction of the child in this State, another State, the District of Columbia, in any territory of the United States, or in any foreign country, for any child born in California and whose certificate of birth is on file in the office of the State Registrar
• A readoption order issued pursuant to § 8919 of the Family Code

Beneficially interested parties may petition the clerk of the superior court for an order to establish judicially the time and place of a birth that is unregistered or for which a certified copy is unobtainable. www.childwelfare.gov/systemwide/statistics/adoption.cfm

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. www.childwelfare.gov/adoption/laws/domestic.cfm#sss

References

1. ↑ Ala. Code §§ 38-13-3(2) & (5); 38-13-2(30)