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An In-Depth Discussion of Adoption
In North Carolina, any person over the age of eighteen (18) may adopt another person unless they are spouses of one another. A child may be placed for adoption either directly through the child's parent or guardian or by an adoption agency. Once the child is placed with the prospective parent(s), a petition for adoption must be filed within thirty (30) days. Along with the petition, a pre-placement assessment of the petitioner is conducted by the county department of social services or by another agency licensed by the North Carolina Department of Human Resources. Once the requisite consents and notice are given in accordance with Chapter 48, the agency prepares and files with the Court a written Report to Court, a document that ultimately assists the Court in determining whether the adoption is in the child's best interest. Unless the petition is contested or is for an adult adoption, the Court may proceed without a formal hearing. At the hearing or disposition, the petition for adoption will be granted if the Court finds that the adoption will serve the best interest of the adoptee. Once the adoption decree is signed, a relationship of parent and child is established between the adoptee and the adoptive parent and the adoptee acquires the same legal status as a natural child of the petitioner(s).
The Elements of Adoption
Adoption proceedings are "special proceedings" before the Clerk of Superior Court. Jurisdiction exists over an adoption proceeding if:
Note: The courts of North Carolina can not exercise jurisdiction if the court of any other state is exercising jurisdiction in conformity with the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA") N.C.G.S. Section 48-2-100
Proper venue (the place the adoption takes place) is with the Clerk in which:
A petition for adoption must be filed no later than thirty (30) days after the minor is placed with the petitioner or North Carolina acquires jurisdiction, whichever occurs later, unless the Court extends the time for filing. N.C.G.S. Section 48-2-401
Sections 48-2-303 through 306 set forth the requirements for adoption petitions. The petition must be approved by The Department of Human Resources and contain the requisite attached documents (if any). Along with the petition, the petitioner must submit or file:
Before a child can be placed for adoption, his or her natural parents must sign either a relinquishment or must consent to the adoption. Chapter 48 distinguishes between the two as follows:
A date and time for the hearing on the petition must be set no later than ninety (90) days after the petition has been filed and must be hear no later than six (6) months after the petition is filed unless the Court grants and extension of time. If the Court finds the requisite statutory requirements have been met and finds by a preponderance of the evidence that the adoption shall serve the best interest of the adoptee, the Court will grant the petition and the adoption decree will be entered. N.C.G.S. Section Section 48-2-601, 603, 604, 605
Legally, when the adoption decree is entered, it substitutes the adoptive family into the place of the biological family. A relationship of parent and child is established between the adoptee and the adoptive parent. For example, the adoptee may inherit real and personal property by, through and from the adoptive parents by intestate succession.
The adoption decree severs the relationship of parent and child as to the biological or previous adoptive parents. With the exception of a former parent's duty to pay past-due child support, the former parents are relieved of all and all legal obligations and duties toward the adoptee after the entry of the adoption decree, including the right of the adoptee and former parents to inherit by and through each other. An important exception to this, however, is a stepparent adoption, whereby the adoption has no effect on the relationship between the child and his or her parent whose spouse is adopting the child.
A child may be placed for adoption by either an agency, a guardian, both parents acting jointly, or by a parent with legal and physical custody of a minor. Placement is the transfer of physical custody to the selected prospective adoptive parents. When a child is placed for adoption directly by his or her parent(s) or guardian, a consent must be signed by the parent or guardian. A parent or guardian who would like an agency to place his or her child must sign a relinquishment of his or her parental rights before the agency can place the child.
When a parent or guardian directly places his or her child for adoption, he or she must personally select the prospective parent; however, he or she may obtain assistance from a person, entity, or adoption facilitator in locating and evaluating the prospective adoptive parents. An adoption facilitator is an individual or nonprofit entity that assists the biological parents in locating and evaluating prospective parents. The facilitator may not charge a fee for its services. The prospective adoptive parents provide the parent or guardian, either directly or through their attorneys or assistant, with information about themselves, including anything requested by the parent or guardian. A pre-placement assessment is also conducted on the prospective parents, which is a document that must be completed or updated within the eighteen (18) months immediately before the placement. The assessment must contain a finding that the prospective parent is a suitable adoptive parent. Copies of the assessment or given both to the applying parent and the agency, who retains a copy for at least five (5) years. If an applicant receives and unfavorable assessment, the Department of Human Services as well as the Division of Social Services receive a copy and the applicant will be allowed to request a second review as well as may file a written response.
The pre-placement assessment must be based on at least one personal interview with each person being assessed in the residence. There are specific requirements in the statute which must be reported on, including, but not limited to, (i) the age, date of birth, nationality, race, or ethnicity and any religious preference; (ii) the marital and family status and history; (iii) physical and mental health, including any alcohol or drug addiction; (iv) the educational and employment history and any special skills; (v) the property, income and current financial information; (vi) the reason for wanting to adopt; (vii) any previous request for an assessment and the outcome of the assessment or placement; and (viii) any other fact or circumstance that may be relevant to determining the individual's suitability to be an adoptive parent, including the quality of the environment in the home and the functioning of any children in the household. The agency will also conduct a criminal records check and may charge a fee for its services.
If a parent or guardian wishes, he or she may relinquish, or voluntarily surrender, custody of his or her child to an adoption agency. The agency then acquires legal and physical custody of the child and may place the child for adoption. An agency can also acquire custody of a child if a court order has terminated the rights and duties of a parent or guardian of the child. The agency gives any interested person a written assessment of it services and the procedures and fees for its services. A child can only be placed with an individual with a favorable pre-placement assessment. The child's parent or guardian can select his or her own prospective parent if the agency agrees, or the agency can select a prospective family on its own based on criteria requested by a parent who relinquished the child to the agency. There is an extensive list of information that must be provided to the prospective parents, either by the agency or the parent, including, but not limited to, the child's date of birth, age and physical appearance of the biological parents, heritage and educational background of the child, and any non-identifying information about the heath of the child or his or her biological parents that may be relevant to the adoption decision.
The prospective adoptive parents must also be taking some active steps during this time. Along with being subject to the pre-placement assessment, the prospective parent must file his or her Petition for Adoption with the Court. The petition must be filed no later than 30 days after the child is placed with the petitioners (the prospective parents) or North Carolina acquires jurisdiction to hear the petition, whichever occurs later. Generally, the spouse of the petitioner must join in the partition unless the spouse has been declared incompetent or is waived in writing. Along with the petition, the petitioner must prove he or she gave notice to the appropriate persons or provide certified copies of any written waivers of that notice by those persons. The person entitle to notice must respond within thirty (30) days in order to participate and if the possible father does not respond accordingly, the law provides his consent to the adoption is not required.
Another document that needs to be prepared and filed with the Court is called the "Report to Court." This is the written report made to the Court that assists the Court in determining if the adoption is in the child's best interest. Similar to the pre-placement assessment, the agency that makes the pre-placement assessment prepares it only after personal interviews are conducted with each petitioner in the person's residence and at least one additional interview with the petitioner and the adoptee. In the Report, the relationship between the adoptee and the petitioner are analyzed and various required information including background, familial and legal statistics, are reported on. This Report must be completed and filed with the Court within sixty (60) days of receiving the Order unless the Court grants an extension of time. If a concern is raised regarding the suitability of the petitioner's home, the agency must immediately file an interim report describing the concern. The final report indicates whether the concern(s) were addressed, and, if so, how. A copy of this Report is given to the petitioner and a copy is filed with the Court.
In the majority of cases, the parent or guardian of the child must either consent to the adoption or relinquish his or her parental rights. Consent is a term mentioned earlier, but there is a lot more that goes into it than previously discussed. One element of consent involves the Affidavit of Parentage, which is completed by the parent or legal guardian placing the child. This document will list the names, last known address and marital status of the child's parents or possible parents. If the parent or guardian is unavailable, the affidavit can be prepared by a "knowledgeable person" who must indicate the source of his or her knowledge. If placing the child with an agency, at least one parent or guardian who relinquished his or her child to the agency must complete the affidavit. A man whose consent or relinquishment is required can give his consent at any time before or after the child's birth, however, the mother may not give her consent or relinquishment until after the child is born.
Whose consent is and is not required? In a direct placement situation, the mother must consent as well as the father in many situations. It is also important to note that a child twelve (12) years old or older must consent to his or her own adoption. Section 3-601 specifically lists the fathers whose consent is necessary and includes those men who have either married or attempted to marry the child's mother, have legitimized the child, acknowledge paternity, or have provided or attempted to provide for the birth mother and/or the child or at least made an effort to visit or communicate with the mother and/or child. For a complete list of persons whose consent is required, see N.C.G.S. Section 48-3-601. In an agency placement, the same persons listed above must provide his or her consent unless he or she has relinquished the child. In addition, the agency placing the child must consent to the adoption. In some instances, consent may not be necessary. For instance, a person whose parental rights have been terminated or a man who is not married to the child's birth mother and who, after the conception, has executed a denial of paternity, need not consent to the adoption in order for it to take place. Aside from this, the Court also may dispense with the consent of a guardian or agency upon a finding that the consent is being withheld contrary to the best interest of the child.
The consent must be in writing and the consequence is to vest legal and physical custody of the child to the prospective parent to allow them to petition the court to adopt the minor. Until the adoption decree becomes final or the parental rights are terminated, however, any other parental right and duty will not be terminated.
A similar cousin to consent is called Relinquishment. A parent or guardian may relinquish all parental powers, including the right to consent to an adoption, to an agency. A mother must wait until after the birth of her baby, however, the father can relinquish his rights at any time. The parent must sign the relinquishment and upon signing, the agency will incur legal and physical custody of the child, empowering it to place the child for adoption. Furthermore, the person signing the relinquishment terminates any rights and duties with respect to his or her legal and physical custody of the child and the right to consent to the adoption. Again, however, parental rights and duties will not end until the adoption decreed becomes final and the parental rights are terminated by a judge.
Perhaps one of the biggest concerns of adoptive parents is whether the child's parent or guardian can revoke his or her consent or relinquishment. Well, the simple answer is "yes." However, there are some specific circumstances by which this can occur under the statute. According to Sections 608 and 706, the time period in which consent or relinquishment can be revoked is seven (7) days. Specifically, a consent or relinquishment of a baby "in utero" can be revoked within seven (7) days, including weekends and holidays, following the date it is signed. If the pre-placement assessment is not given to the parent or guardian until after the revocation count-down has begun, the parent or guardian is given either five (5) business days after the date he or she receives the assessment or the remainder of the time for revocation, whichever is longer.
A far more rare way to nullify a consent or relinquishment is to have it set aside. Under the statute there are limited ways for a Court to find a consent or relinquishment to be declared void. In particular, the consent or relinquishment will become void if the person who signed the document can show by "clear and convincing" evidence that it was obtained by fraud or duress. This must be shown before the decree of adoption is entered. A second way to set a consent aside is if the prospective adoptive parent and the individual who gave the consent mutually agree to set aside the consent, in which case it becomes void. Also, if the Court dismisses the petition to adopt or it is voluntarily dismissed by the petitioner, the consent becomes void. The effects of a void consent or relinquishment are the same as those for a revocation of consent or relinquishment.
The final step in the adoption process involves the Court hearing on or disposition of your petition to adopt and the entering of the adoption decree. Unless the petition to adopt is contested, the Court can proceed without a formal hearing in most cases. A date will be set within 90 days after the petition is filed and must be heard no later than six (6) months after the petition is filed unless there is an extension of time granted. At the hearing, if the Court it finds that the adoption will serve the best interest of the adoptee, and if all other procedural requirements have been met, the Court will grant the petition and will enter the adoption decree.
A second type of adoption involves a stepparent who wants to adopt his or her stepchild. In order to file a petition for adoption, the stepparent's spouse who is the parent of the child must have legal and physical custody of the child and the child has to primarily live with this parent/spouse for the six (6) months prior to the stepparent filing the petition. If the parent/spouse of the stepparent is deceased, but before dying, had legal and physical custody of the child and the child lived with the potential adoptive stepparent, he or she may also file the petition to adopt.
Like in any adoption, there are consent requirements with stepparent adoptions as well. The necessary consent must be given by the stepchild if he or she is twelve (12) years old or older, by the parent/spouse (usually the biological parent) or by the child's legal guardian. The minor step-child's parent who is not the stepparent's spouse must also give his or her voluntary consent and must acknowledge the transfer of any right the parent has to legal or physical custody of the child and the other parent and stepparent, the adoption of the child by the stepparent, and must indicate the termination of the legal relationship of parent and child between the adoptee and the parent executing the consent.
It is important to remember that a stepparent adoption does not terminate or affect the right of the biological grandparents to petition the court for visitation rights. However, the visitation must be in place at the time of adoption and be found to be in the best interest of the child. In order to be granted visitation, however, the grandparents should have been participants in the life of the child before the adoption.
One way an adoption can be set aside if the consent or relinquishment by the child's biological parent is revoked. As mentioned above, a consent to the adoption of or relinquishment of an unborn infant or any minor child is seven (7) days following the date on which the consent was executed (unless an optional provision indicates otherwise). Weekends and holidays are included in this time period, however, if the seventh (7th) day falls on a holiday, the period will continue until the next business day.
A second defense to an adoption is when a necessary consent or relinquishment becomes void. This can occur if the person who gave his or her consent can convincingly show that the consent was obtained by fraud or duress. When the adoption involves consents only, it can be declared void if the prospective adoptive parent and the person who gave his or her consent mutually agree to set aside the consent. Also, if the prospective adoptive parent decides he or she does not want to go through with the adoption and voluntarily dismisses his or her petition or the petition is dismissed by the court for some reason, the consent will be declared void. Finally, an adoption decree can be set aside if a party whose consent is necessary, but was never obtained. In any case, the aggrieved party may move to have the decree set aside within six (6) months of the fraud, duress, or omission within six (6) months of the time the particular error ought reasonably have been discovered.
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The court considers joint custody upon the request of either parent. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence. If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation does not weigh against the party in determining custody or visitation.
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