Before the Case
All adoptions of U.S.-born children need to be finalized in court. And actually, the court process is fairly simple. This is because most of what has to happen has to be done BEFORE the court hearing.
Once it can be shown (in writing) who the legal parents are, who has legal custody of the child, and that everyone involved knows about the adoption and agrees to it, the adoption case is ready to go to court.
Birth parents give up their parental rights to an adoption agency. The agency is then legally responsible for the custody of the child. California’s Department of Social Services, or an adoption agency, asks the court for permission for the adoption.
Tribal Customary Adoption:
A child is adopted through the tribal custom or law of the child’s tribe. Termination of parental rights is not always required for a tribal adoption.
Birth parents choose the adopting parent(s) and place the child directly. No agency is involved. The birth parents must be told their rights, responsibilities and options from an Adoption Service Provider. Birth parents must sign an Independent Adoption Placement Agreement.
Parent(s) adopt foreign-born children. Federal law makes a special immigration entry visa available. An adoption must be completed in the child’s birth country and in California.
Stepparent or Domestic Partner Adoption:
The spouse or partner of the child's parent adopts that child. One of the child's birth parents remains the child's parent and the other birth parent has his or her parental rights terminated.
Stepparent or Domestic Partner Adoption to Confirm Parentage:
The spouse or domestic partner was married to, or in a domestic partnership with, the child's birth parent at the time that the child was born. In this case, an easier process can be used to finalize the adoption. No social worker report or court appearance is needed.
The adoptive parent is a relative caregiver who has had an ongoing relationship with the child.
An adoptive parent, who is older than the adult person to be adopted, wants to create a parent-child relationship that will be legally recognized.
Most people are eligible to adopt a child no matter their marital status, income or sexual orientation. Having a disability does not disqualify a prospective adoptive parent. The court’s main concern is the best interest of the child.
The adopting parent must be at least 18 years old. Each adopting parent must:
- Be at least 10 years older than the child being adopted.
- Treat the child as his or her own.
- Support and care for the child.
- Have a suitable home for the child.
- Agree to adopt the child.
Some foreign countries have specific requirements and restrictions for families who want to adopt from those countries. Also, faith-based agencies may have specific requirements for families adopting through their agencies.
Home Study to Confirm Eligibility
In almost every type of adoption, the adopting family will have to have someone come and check out them and their home before the adoptive placement can take place. The main reason for this study is to make sure each child is placed in a suitable home, and that good matches are made between children and families.
Home studies also help to make sure that prospective homes comply with state and local laws for placement of adoptive children. They also make sure that parents and families are prepared with the information they need to make the best decisions for their families about adoption.
Stepparent Adoptions to Confirm Parentage do not require a home study.
Thousands of children are eligible for adoption.
Children may be adopted by a birth parent's spouse or partner if both birth parents agree to this.
Special Note: Children can also have their non-birth parent adopt to "confirm parentage" if the non-birth parent and birth parent were married or in a domestic partnership at the time that the child was born.
Children living with relatives
Children who are living with relative caregivers may be adopted by the relative.
Children offered to adoptive families
Children whose birth parents voluntarily give them to the adoptive family.
Children born outside of the United States
Some children born overseas are legally eligible for adoption by a US citizen.
There are 3 main reasons that people adopt an adult: inheritance, formalizing a parent-child relationship; or to provide care to a disabled adult. The adopting parent must be older than the person being adopted.
Foster children of all ages are awaiting permanent homes. Parental rights to these children have been terminated by court order.
Before you can adopt a child, you have to establish who the legal parents of the child are. Then, you have to get the parents’ approval for the adoption. If either of the legal parents does NOT approve of the adoption, you have to either stop the adoption or have the rights of the objecting parent ended by the court.
Establishing who the legal mother is
- It usually is not difficult to establish who the mother of a child is as long as there is a recorded birth certificate naming a woman as the mother.
- If a woman is the adoptive mother, again there probably is no problem. The amended birth certificate issued after her adoption of the child, or the decree of adoption, will be enough proof that she is the legal parent.
- The only reason a problem might arise is if her legal parentage was terminated through a court action. In that case, you will probably need to consult with an attorney who has experience in this area of the law.
Establishing who the legal father is:
- It will probably not be difficult to establish who the father of a child is as long as he was married to the mother when she had the child, and there is a recorded birth certificate naming a man as the father.
- If a man is the adoptive father, again there probably is no problem. The amended birth certificate issued after his adoption of the child, or the decree of adoption, will be enough proof that he is the legal parent.
- In these adoption cases, a problem might arise is if the adoptive father’s legal parentage was terminated through a court action. In that case, you will probably need to consult with an attorney who has experience in this area of the law.
- If the father was not married to the mother when she had his child, his legal status as father could be established if any of the following are true:
- His name appears on the birth certificate;
- He lived with the mother after the birth of the child and acknowledged that the child was his;
- He signed a paternity statement, or
- He married the mother at some point after the birth of the child.
For more information, please go to our Frequently Asked Questions section, including:
- What is a birth parent?
- What is a presumed father?
- What is an alleged father?
- What are the birth parents’ rights?
- If child was born to a surrogate mother?
- If child was conceived using a sperm donor?
Before you can adopt a child, you have to prove who has legal custody of that child.
For a woman to establish that she has legal custody of the child:
A mother living with her child probably has legal custody if any of the following are true:
- She has a court order giving her sole or joint custody.
- The other legal parent voluntarily agreed to her having actual custody.
- She became the sole custodian when the other legal parent died.
- She became the sole custodian when the other legal parent lost his or her legal parental rights in court.
- She adopted the child on her own when she was single.
- She is the birth parent, was not married when the child was born, and there no custody orders affecting the child.
For a man to establish that he has legal custody of the child:
For a man who is living with his child, he probably has legal custody if any of the following are true:
- His has a court order giving him sole or joint custody.
- The legal parent voluntarily agreed to him having actual custody.
- He became the sole custodian when the birth mother or other legal parent died.
- He became the sole custodian when the legal mother or other legal parent lost his or her parental rights in court.
- He adopted the child on his own when he was single.
NOTE: If a man wants to adopt a child who is living with him and he does not have a court order giving him custody he must be prepared to explain to the court that the birth parent voluntarily agreed to his custody. If he can’t do this, he will need to give some other valid explanation as to how he got custody of the child.
Before a court can make a decision about an adoption petition, it will need to be sure that everyone involved knows about the adoption and agrees to it.
Who must agree to the adoption (give consent):
- Both birth parents, if they are living (see California Family Code, Section 8604)
- The child being adopted, if he or she is 12 years or older. (see California Family Code, Section 8602).
NOTE: Children under the age of 12 years do not have to agree to the adoption.
- The person who has custody of the child if the parents:
Fail to communicate with and support the child, and
- Fail to respond to notice of adoption (see California Family Code, Section 8603)
Parental consent is not necessary when the parent has:
- Formally given up his or her rights or had them ended by a court;
- Deserted the child (see California Family Code, Section 8606)
- Willfully failed to contact or support the child for one year or more (see California Family Code, Section 8604).
Even if you don't know who or where the child's parents are, the court will expect you to make every effort to find them and get their consent, or get a court order ending their parental rights.
NOTE: If a child was conceived using a sperm donor, the donor is not legally considered the father if the procedure was done through a doctor or a sperm bank, or if the donor and birth parent both signed California Statutory Forms for Assisted Reproduction, Form 4 prior to the insemination. If the insemination was done without a doctor, sperm bank, or Form 4, the sperm donor may legally be considered the father. Therefore, he must give consent to the adoption.
For more information, please go to our Frequently Asked Questions section, including:
- Informing the birth parents
- If willful failure or abandonment
- If you don’t know where the birth parents are
- How to ask the court to terminate parental rights
Before a court can make a decision about an adoption petition, it will need to be sure that the adoption is legally possible in your situation. You may need to provide:
- A certified copy of the child’s birth certificate.
- Marriage certificates of the adopting couple’s present marriage, and all of their prior marriages.
- Final divorce papers for all prior marriages.
- Proof of registration of domestic partnership.
- Proof that earlier domestic partnerships were terminated.
- Any court order awarding custody of the child to someone.
- The death certificate if one of the parents of the child died.
- The death certificate of any former spouses or domestic partners.
- Any military discharge papers for the adopting couples.
- The social security number for each of the adopting parent(s).
- Written tribal consent for the adoption if the child is of Indian ancestry.
A certified copy of the document may be requested from the agency that issues the document.
Adopting a child may involve filling out a lot of forms. These could include the forms of:
- The adoption service provider,
- California’s Department of Social Services and
- California’s Judicial Council.
- If the child being adopted is of Indian ancestry there are special state, federal and tribal forms to fill out.
- If the child being adopted is from another country (not the United States) there most likely are forms of the country of birth, as well as US federal and state forms.
If you are working with an adoption service provider, it will probably help you learn which forms are needed in your case: it may even fill them out for you.
Remember, when you go to court the judge will need to know:
- Who the legal parents of the child are,
- Who has legal custody of the child, and
- If the legal parents and/or custodians have given their permission for the adoption in one way or another -- or have had their rights to object removed by the court so that the adoption can take place.
Written proof of this information will need to be attached to the court’s Adoption Request (Form ADOPT-200). This proof could be in the form of documents, such as the child’s birth certificate. Another way to give information to the judge is through forms.
California’s Department of Social Services has many forms which may be helpful. We have included links to a few of the forms it has on its website to give an idea of what could be found there.
- AD 67 - Information about The Birth Mother
- AD 67A - Information About The Birth Father
- AD 1A - Consent To Adoption By Parent(s) (In California)
- AD 2 - Stepparent Adoption (Consent To Adoption By Parent Retaining Custody)
- AD 2A/2B - Stepparent Adoption (Consent to Adoption by a Parent in or outside of California Giving Custody to Husband or Wife or Domestic Partner of Other Parent)
- AD 824 - Adoption Petition - Consent and Joinder
- AD 9 - Independent Adoption Questionnaire
- AD 924 - Independent Adoption Placement Agreement
- AD 501 ENG/SP - Relinquishment In or Out-of-County (Birth Mother/Presumed Father in California)
- AD 8 - Marriage/Divorce Verification (Combined With AD 19)
- AD 20 - Refusal To Give Consent To Adoption
There are many more forms created by California’s Department of Social Services.
Once you have all of the written information you need to prove that the adoption is legally possible in your situation, you are ready to go to court.
Adoption is a legal process through which children who will not be raised by their birth parents become full, permanent, and legal members of another family. As such, adoption involves the rights of three distinct "triad members": the birth parents, the child, and the adoptive parents.
Handling an adoption can be difficult and confusing. For this reason, many people consider getting expert help. Please read our page called Do I Need a Laywer?
For free and low-cost legal help in California:
Go to the California Courts website for help from these groups below: click here.
- Court-based self-help services
- Legal aid agencies and other non-profit groups
- Government agencies
- Lawyer-referral services and bar associations
- Dispute resolution programs
If people are thinking about adopting a child, they often need more than just legal help. For example:
- The people involved, including the children, may have a hard time dealing with their feelings or emotions at this time.
- The children may be worried about where they will live, and the adults may be worried about paying for childcare.
Please know that there are people who want to help. Sometimes it takes talking to several people before the right person is found, so ask everyone what he or she recommends. Don't give up!
Some other resources or options to consider include:
- Go to a library, buy a self-help book, or look on the internet.
- Spiritual support: Priest, minister, rabbi, or other religious leader trained in family counseling.
- Help with child care: School districts, local job training programs, and area preschools
- Mexican citizens living in Northern California can now get free legal help 24 hours a day through a hot line launched by the Bay Area's Mexican Consulates. Callers will speak with a lawyer or paralegal who can handle questions related to immigration, labor law, family law, and civil and criminal matters. 1-800-668-1005
There are two main reasons that the court may terminate parental rights:
1. The parent has abandoned the child. (See California Family Code Section 7822)
- Proof will have to be presented to the court at a special hearing on parental rights that the abandonment was intentional. This could be done through:
- Testimony of witnesses and/or
- Written documentation.
2. The child has been neglected or cruelly treated by either or both parents.
(See California Family Code Section 7823 and the following 6 sections)
- Normally, a state agency will be involved if there has been neglect or cruel treatment of a child. (Although one parent may neglect a child and the other parent be the caregiver.)
- A petition to terminate the parental rights of either parent can be filed if the parent -- for a period of one year or more -- willfully failed to communicate with and to pay for the care, support and education of the child when he or she was able to do so. (See California Family Code, Section 8604)
- A petition to have a child declared free from the custody and control of one or both parents may be filed if:
- One or both parents do not have the legal custody of the child.
- The child has been in the physical custody of the guardian for at least two years.
- The court finds that the child would benefit from being adopted by his or her guardian. In making this decision, the court will consider all factors relating to the best interest of the child. (See California Probate Code, Section 1516.5)
Rights of Birth Fathers Clarified
The right to parent one’s child is a fundamental constitutional right, but it is not the simple fact of biological paternity that gives those rights. It is acceptance of parental responsibilities that give significant constitutional rights to the birth father. Further, the birth father must act to take responsibility for the child “within a short time” after he first learns, or should have known, of the pregnancy.
(See California Supreme Court decisions Adoption of Kelsey S. (1992) and Adoption of Michael H. (1995)).
NOTE: This is a complicated area of law. Parents have different rights depending on how the law defines their relationship to the child to be adopted. For example, the rights of a “presumed father” are different from those of an “alleged father.” For more information, please consider consulting with a lawyer who has experience in this field.
In general, this is how a Termination of Parental Rights case works -- if the termination is not voluntary.
- The person starting the court case (petitioner) creates a petition and court summons.
- The petitioner calls the closest courthouse to ask two questions:
- Is this the courthouse where this case should be filed? If not, where should I file?
- After I have created the documents, how many photocopies of them will I need to make for filing?
- The petitioner files his or her court documents.
- "Filing the documents" means taking the petition and summons to the courthouse and giving them to a court clerk. The clerk will put the original documents in a file that starts the court case, then stamp the photocopies and return them to the person doing the filing.
- A person over 18 who is not connected to the court case gives the parent whose rights are to be terminated (the respondent) copies of the court documents.
- When a lawsuit is filed, the person being sued has a right to be told about it. This needs to be done in time for the person to go to court and tell the judge his or her side of the story before the judge makes a decision. This is called "service of process" and is very important.
- The person who serves copies of the court documents on the respondent fills out a form to show they have given the correct forms to the respondent in the right way. The server gives the form to the petitioner.
- The petitioner files the “Proof of Service” form with the court.
NOTE: The parent whose rights are to be terminated (the respondent) can respond in different ways:
- Either the mother or the father could not respond at all. (If he or she does not respond, then the court could terminate his or her parental rights.)
- Either the mother or the father could sign a relinquishment form.
(This would end his or her parental rights.)
- Either the mother or the father could decide to try to prove that a parent-child relationship exists that is in the best interests of the child.
(This could result in a Child Custody case.)
- An alleged father could sign a Denial of Paternity form.
(This could result in a Parentage case.)
If the parent whose rights are to be terminated decides to go to court:
- The parent whose rights are to be terminated (the respondent) gets the forms he or she needs and fills them in. This may start a:
- Parentage case and/or
- a Child custody case
- The respondent files his or her court forms.
- A person over 18 who is not connected to the court case gives the petitioner copies of the respondent's court forms.
- The person who serves copies of the court documents on the petitioner fills out a form to show they have given the correct forms to the petitioner in the right way. The server gives the form to the respondent.
- The respondent files the “Proof of Service” form with the court.
- Each side prepares evidence to support his or her side of the story.
- Normally, a hearing will be held and a judge will listen to both sides of the story and receive the evidence presented by both sides. The judge probably will also talk with the child who is the subject of the petition – if the child is 10 years of age or older.
The issues of parentage, rights and custody may all be decided during the same court hearing. In making these decisions, the court’s primary concern will be the best interests of the child.