Consent and Revocation Periods – Ever changing but ever important.

The adoption journey involves not only a complex emotional journey but a complex legal one as well.  One of the legal complications revolves around the consent and revocation time periods that apply to the adoption.  Adoptive parents often have to think about the laws where they reside and those where their agency is licensed or the expectant family resides.  There is no single resource where one can find out all of the consent and revocation periods in the United States.  The reason such a resource does not exist is because the laws can change frequently by the legislature or as a result of a court decision, they can be different within the same state depending on whether the adoption is an agency or private adoption and which state law applies to the particular adoption impacts which consent and revocation laws apply.  

As an example of the different and complicated  laws, we can look no further than the three local jurisdictions.  In Maryland, a birth parents’ consent can be taken any time after the birth of the child and they then have 30 days to revoke their consent.  In the District of Columbia in a private adoption the consent can be taken anytime after the child is born and the consent is irrevocable upon execution meanwhile if the adoption is through a D.C. Adoption agency, the consent is revocable for 14 days after execution.  In the State of Virginia, a consent cannot be take until 72 hours after birth and is revocable for 7 additional days, if however, the birth mother signs the consent after the child is 10 days old, she can waive the 7 day revocation period.  In Virigina, a birth father could deny paternity prior to the birth which terminates his rights.  The revocation period in D.C. for agency adoptions just changed two years ago.  As evident from just these three jurisdictions, one can see why providing a detailed listing of the consent and revocation periods would be near impossible.  The most reliable resource for any adoption law and, in particular, on consent and revocation periods is one of the professional attorneys associated with FPA who are also members of the American Academy of Adoption Attorneys (AAAA).

With all of this in mind, I took some time to survey AAAA Fellows from around the country to obtain some of the consent and revocation laws to give a general overview of current state laws.  Not all states are included and these should be used as a general reference only – you should still check with your attorney about the current state of any law prior to proceeding with an adoption.

Alabama The consent for birth mother can be signed before birth if it is done in front of a probate judge, after birth before a notary or judge. A consent can be signed after birth any time that would be reasonable, usually 24 to 48 hours. A birth father can sign any time before or after birth before notary.

Arizona A birth parent and/or legal parent can’t sign a valid consent until more than 72 hours after the birth.  When signed, consent is irrevocable unless there is clear and convincing evidence of fraud, duress or undue influence. 

Colorado There is both an expedited and traditional relinquishment process.  Both expedited and traditional relinquishments require an agency’s (or Department of Human Services) involvement.  The expedited relinquishment procedure applies only for children under one year of age.  The petition for relinquishment can be filed four (4) business days after birth and the court may grant the petition, without a hearing, within seven (7) days after the filing.  A relinquishing parent may seek to revoke their petition up until the court signs the Final Order of Relinquishment. 

In an expedited relinquishment procedure, Pre-birth notice may be given to putative fathers up to sixty three (63) days prior to the anticipated date of delivery.  The putative father has either twenty-one (21) days from the date of notice or until the Petition for Relinquishment is filed, whichever time frame is longer, to properly reply and declare an intent to contest the termination of his rights.  In order to properly reply and declare an intent to contest the termination of rights, the birth father must return a completed Reply form declaring his intent to contest and file a claim of paternity within the proper time frame. 

A traditional relinquishment can take several months, requires a hearing, and the relinquishing birth parents can change their mind any time prior to the court entering final orders.  A non-relinquishing parent is given thirty-five (35) days, after notice, to respond and contest his/her rights being terminated. 

Illinois Any alleged father can sign before birth and it is revocable until 72 hours after birth. Any alleged father (including legal fathers who are not the biological father) or a “father” who will neither admit nor deny paternity can sign a notarized waiver, final and irrevocable, at any time.  Mother can only sign after 72 hours from birth, final and irrevocable.  Putative fathers can also be served notice pre-birth. If no response in 30 days, rights can be terminated pre-birth.

Kentucky  The waiting period is 72 hours after birth and the revocation period is within 20 days after approval of the prospective adoptive parents by Kentucky's Cabinet for Heath and Family Services (ICPC approval).  Voluntary and Informed Consents - which are the only statutorily defined "consents"- only apply to private adoptions by virtue of the language in the Voluntary and Informed Consent itself.  

Florida For a newborn to a child 6 months of age, the mother has a 48 hour waiting period or date of hospital discharge (first to occur).  After the waiting period, consent are binding and irrevocable.  The father has no waiting period.  All consents binding and irrevocable.

For a child six months of age or older, there is a three business day recision period (business defined as any day U.S. postal service accepted certified mail).

Minnesota The consent can’t be signed prior to 72 hours after birth and the birth parent has 10 working days to revoke.

Montana The waiting period for a birth mother is a minimum of 72 hours after birth of baby and her receipt of the required minimum of 3 hours of counseling provided by an employee of a Montana licensed child placing agency.  In private (direct placement) adoptions, the birth mother must in addition receive a copy of the adoptive parents home study prior to signing a relinquishment/consent.   No revocation period.  Birth Father can sign any time including prior to the birth of the child.  It is not required that the birth father receive counseling or a copy of the adoptive parents’ home study. 

New Jersey There is a 72 hours waiting period to take a consent.  No revocation period for agency adoption:  For a private adoption the revocation period varies.  Birth parent's rights are terminated either thru a judicial termination (via a court hearing), at the preliminary adoption hearing ( if no objection has been entered by a birth parent) or through the assistance of an agency(called an "identified adoption")  - whichever occurs first.

Nevada There is a 72 hour after birth waiting period, and both Consents and Relinquishments are irrevocable upon signing.

North Carolina In independent and agency adoptions, a putative or legal father can sign any time before or after the child’s  birth and the mother can sign any time after the child’s birth. In independent and agency adoptions, the revocation period is 7 days after signing (with the day of signing being “day zero” and intervening Saturdays, Sundays and holidays being counted). However, the revocation period cannot end on a Saturday, Sunday or a court holiday so it will therefore be extended to the next following business day. 

In independent adoptions only, North Carolina requires that a copy of the home study be given to a “placing parent” (one with legal and physical custody).  Notwithstanding the 7-day rule, in independent adoptions only, the revocation period for a placing parent cannot end before 5 business days have elapsed from the day the placing parent is given a copy of the home study.

The 7-day rule does not apply to a second identical consent (independent) or relinquishment (agency) signed by a parent following a revocation of an earlier consent or relinquishment.  The second consent or relinquishment is irrevocable when signed. 

Ohio A consent in a private adoption or a Surrender in an agency adoption may not be taken less than 72 hours after the child is born or after the assessor has met with the birthparent(s), whichever is later.  Birthparent(s) may not revoke an executed consent prior to an interlocutory hearing unless revocation is in the best interests of the child.  After an interlocutory hearing a consent is not revocable for any reason.  Permanent Surrenders in agency adoptions may not be revoked. 

Oregon There is no waiting period. Putative fathers (only) can sign before the baby is born. Legal fathers and mothers cannot sign until after the baby is born.  No statutory revocation period.   In an Agency, consent is Irrevocable upon placement if certificate of irrevocability was signed along with the consent.  In a private case, consent is irrevocable upon meeting all six conditions set forth in the statute. 

Tennessee A birth mother may execute a Surrender of Parental Rights before a judge not sooner than 72 hours after birth. A legal father may do the same.  Both are subject to a 10 calendar day revocation period which extends to next business day if 10th day falls on weekend or holiday.  A putative father who is not a legal father may waive his parental rights on a statutory form before a notary after birth, and also before birth if the birth mother signs an affidavit identifying him before a notary.  Waivers are not revocable unless an adoption does not occur.

South Carolina No minimum waiting time after birth for private or agency adoptions (BUT the rule of thumb followed by most practitioners is to wait at least 24 hours after birth).  No revocation period.

Texas Alleged father’s affidavit of waiver of interest is irrevocable from signing whether private or agency.  Birthmother and Presumed Father’s affidavits of relinquishment can be irrevocable from signing if to an agency (and specifically provided for in the affidavit).  If signed direct to adoptive parents, then they are either revocable for 10 days (this is the default) or the affidavit can provide it is irrevocable for up to 60 days (after which it becomes revocable but the idea is to terminate rights before the 60 days expires).

Utah  Birth mothers cannot sign until 24 hours after baby is born.  Anyone else can sign at any time, including before birth.  All consents are irrevocable upon signing. 

Wisconsin Consent is taken before a judge following the filing of a TPR (termination of parental rights) petition (hearing within 30 days of filing).  Consent is final when taken and approved by court in court.  No revocation period for private or agency adoptions. 

In addition to revocation and consent laws, most states have laws that allow a final judgment of adoption to be challenged if a birth parent can show fraud, duress or undue influence even if the consent is irrevocable.  The period in which a birth parent can challenge on these grounds ranges from 30 days to a year.  The best protection from a challenge on fraud, duress or undue influence is for the birth parent to have separate, independent counsel.  Finally, a final judgment generally has a thirty day appeal period and most states also allow a judgment to be modified if there is a mistake or error in the judgment.  These later laws do not often come into play with adoptions, however, an attorney will consider these laws and advise you accordingly for your adoption.

As noted in the beginning, these laws change from time to time when new legislation is passed or a new case reaches the highest court in a particular state so you should not rely on this list other than for general reference.  Your attorney can verify the laws of any state that impact your particular adoption and they are your most reliable resource. 

Contact Jennifer Fairfax for a consult about your infant adoption matter today at JFairfax@jenniferfairfax.com 

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax