By the adoption team at Prescott’s Family Law · · 3 min read
Why timing matters
Consent is the legal hinge of an adoption. California protects birth parents by controlling when a consent can be signed and how long it can be withdrawn, and it protects children and adoptive families by making those rules clear. Everyone involved is better served when they understand them from the start.
When a consent can be signed
In an independent adoption, a birth mother cannot sign a consent until she has been discharged from the hospital (Cal. Fam. Code § 8801.3). No one may ask her to sign before then. A baby can go home from the hospital with a prospective adoptive family under a hospital release, but that release is not a consent.
Before signing, a birth parent is entitled to be advised of their rights by an adoption service provider, and is free to take independent legal advice. Our firm acts for one side of an adoption only, never both.
The 30-day window
Once a birth parent has signed, they have 30 days to revoke the consent. After 30 days, the consent becomes permanent (Cal. Fam. Code § 8814.5).
A birth parent can choose to give up that 30-day window by signing a waiver, which makes the consent final at once. The law protects that choice: the waiver must be signed before an agency representative, or before a judicial officer or adoption service provider while the birth parent is represented by independent counsel.
Agency adoptions work differently
In an agency adoption, the birth parent signs a relinquishment to a licensed agency rather than a consent to particular adoptive parents. The relinquishment becomes final 10 business days after the California Department of Social Services receives it (Cal. Fam. Code § 8700).
Birth fathers
The consent of a presumed father is generally required (Cal. Fam. Code § 8604). A man who is only an alleged father must receive notice, and the court decides whether his consent is needed (Cal. Fam. Code § 7664). The California Supreme Court has held that an unmarried father who promptly comes forward and shows a full commitment to his parental responsibilities is entitled to the same protection as other fathers (Adoption of Kelsey S. (1992) 1 Cal.4th 816). California has no putative father registry, so these questions are decided on the facts.
Native American children
Federal law adds protections where the child is a Native American child. A parent’s consent must be in writing and recorded before a judge, a consent given before or within 10 days after the birth is not valid, and a parent may withdraw consent for any reason at any time before the final decree (25 U.S.C. § 1913).
What this means in practice
For adoptive families, the first 30 days after consent can be emotionally hard. Plan for them honestly, keep in close touch with your attorney, and avoid anything that could look like pressure on the birth parent.
For expectant and birth parents, you are never obliged to place your child, you cannot be asked to sign before you leave the hospital, and you have time to think afterwards. Prescott’s Family Law never charges expectant or birth parents. Our hospital plan template can help you set out your wishes for the birth.
Sources
- Cal. Fam. Code § 7664
- Cal. Fam. Code § 8604
- Cal. Fam. Code § 8700
- Cal. Fam. Code § 8801.3
- Cal. Fam. Code § 8814.5
- Adoption of Kelsey S. (1992) 1 Cal.4th 816
- 25 U.S.C. § 1913