An Overview of Adoption Law
In West Virginia
How are Rights Severed By Agreement or Voluntarily? Parental rights may be surrendered voluntarily in one of two ways, through a “consent” or through a “relinquishment.”
Consent: A “Consent” is executed by a minor child’s parent or guardian to surrender voluntarily to an individual, for purposes of the child’s adoption, the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child. WV CODE § 48-22-108. A consent is usually obtained when the birth mother wants to place child for adoption and the petitioners or their agent have direct contact with her. Sometimes, a birth father may wish to execute consent, rather than face an abandonment ruling from a Court.
Relinquishment: A “Relinquishment” is executed by a minor child’s parent or guardian to surrender voluntarily to an agency, for purposes of the child’s adoption, the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child. WV CODE § 28-22-115. A “relinquishment” is usually obtained when the birth mother has direct contact with an agency or where she faces involuntary termination of parental rights. In this instance, the agency is the legal guardian, and it will have to give its consent for a subsequent adoption to take place.
When are these obtained? To be legally valid, the consent/relinquishment has to be executed sometime after expiration of 72 hours after the birth of the child. WV CODE § 48-22-302.
Requirements for the consent/relinquishment:
Must be executed in the presence of at least a notary public, but may be executed in the presence of a judge, a person whom the court appoints, or certain military officers and consulates. WV CODE § 48-22-302.
Must have very specific language required by WV CODE § 48-22-303, including, among other things, whether the child is an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1903.
The executing party must have received a copy of the consent/relinquishment, must have been provided the information and afforded the opportunity to participate in the voluntary adoption registry, must have been advised of the availability of counseling, must have been advised of the consequences of misidentifying the birth parent, and if a birth mother, must have been advised of the obligation to provide an affidavit if the father is unknown.
When is the consent/relinquishment final? Can it be revoked? A consent or relinquishment is final upon its execution.
However, it may be revoked if it was “conditional” and the condition that was anticipated actually occurs. WV CODE § 48-22-303. The consent or relinquishment may expressly provide for the conditional revocation in the following instances:
- if another person whose consent/relinquishment is required does not execute the same within a specified time period; or
- if a court determines not to terminate another person’s parental relationship to the child; or
- in a direct placement for adoption, a petition for adoption by the prospective person is denied or withdrawn.
It may also be revoked, in accordance with WV CODE § 48-22-305, if:
-the executing party and the prospective adoptive parent named therein or the lawyer for the prospective adoptive parent, or the agency (in the case of a relinquishment) agree to its revocation prior to the entry of an adoption order; or
- the executing party proves by clear and convincing evidence, in an action filed either within 6 months of the date of the execution of the document or prior to the date an adoption order is final (i.e. once it cannot be appealed any longer), whichever date is later, that the consent/relinquishment was obtained by fraud or duress 2; or
- the executing party proves by a preponderance of the evidence, prior to the entry of the adoption order, that a condition allowing revocation as set forth expressly within the consent/relinquishment has occurred; or
- the executing party proves by clear and convincing evidence, prior to the entry of the adoption order that the consent/relinquishment does not comply with the requirements of the Adoption Code.
2 “Duress” means a condition that exists when a natural parent is induced by the unlawful or unconscionable act of another to consent to the adoption of his or her child. Mere duress of circumstance does not constitute duress. Wooten v. Wallace, 177 W.Va. 159, 351 S.E.2d 72 (1986).
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