January 31, 2019 BY Emily Shuman
New Laws Adopted Make Adoptions Easier in Georgia
As of September 1, 2018, adoptions in Georgia are easier. The state’s Adoption Code was significantly revised, adding clarity and modernity to some laws not touched since 1990. The revisions seem to reflect the state’s articulated interest in “promptly providing stable and permanent homes for adoptive children, and in preventing the disruption of adoptive placements.” While the changes are vast from residency requirements of adoptive parents to assistance for birth parents, this article highlights many of the new laws.
Georgia law provides that a child can be adopted in one of several ways including (1) through the Department of Human Services (“Department”) or child-placing agency (including from other states), (2) by the spouse of the child’s parent, (3) by a relative (related by blood or marriage as a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, or sibling), and (4) by a third party who is neither a stepparent nor relative of the child. Adult adoptions and adoption of foreign-born children are also possible but are not specifically discussed herein.
In Georgia, the superior courts have exclusive jurisdiction over adoptions. An individual can petition to adopt a child if the person is a Georgia resident when the petition is filed whereas previously there was a requirement to reside here for six months. The new laws also broadened the venue options for non-Georgia residents who wish to adopt.
Generally as part of the adoption process, the rights of the child’s parent(s) must be surrendered or terminated. While the statutes detail how this occurs, there are also new forms for surrenders and other necessary affidavits. For example, a “mother’s affidavit” must now identify, among other information, any temporary guardian and anyone with custody rights to the child. There is also a new affidavit for pre-birth surrenders. The forms provide that a non-resident who surrenders rights agrees to jurisdiction in Georgia for any action which is related to the adoption.
Several aspects of surrenders in third party adoptions differ from other types of adoptions. A third party to whom a child is voluntarily surrendered is financially responsible for the child as of the date of the surrender. Moreover, in third party adoptions, a petition for adoption must be filed within 60 days from when from the surrender of rights is executed. A petitioner must show good faith to file the petition beyond that time. If the petition is not timely, or is not granted, surrendering parents can now elect to surrender rights in favor of an out-of-state licensed agency. Also, in third party adoptions, at least some of the reporting requirements to the Department have been eliminated.
Even if a parent signs a surrender so that a child can be adopted, he or she has the right to revoke it – although it must now be done within four days after signing the surrender instead of the 10 days previously permitted. Practically, this greatly reduces the window in which a mother, for example, can change her mind about placing the child for adoption. Furthermore, the new law specifically excludes using certified mail as a means to revoke a surrender.
If a mother surrenders her rights but does not timely revoke the surrender, now she cannot consent to a biological, non legal father’s petition for legitimation (to become the legal father). This was added to prevent a mother from trying to use the separate legitimation action to reverse a placement after her revocation period ends. (New language explicitly states that if the child is legitimated and the adoption petition is revoked with prejudice or denied, then the mother’s surrender of rights for the adoption is dissolved by operation of law and her rights are restored.)
Under certain circumstances, a legal parent’s rights can be involuntarily terminated (e.g., the parent abandoned the child). When a petitioner makes such an allegation, he or she can attempt to serve the parent by publication while simultaneously attempting to perfect service by other appropriate means (preferably personal service). A petitioner does not have to first seek and obtain an order for service by publication, thereby saving time and money. However, to rely on service by publication, the petitioner must aver that service by other means was unsuccessful after diligent efforts. When a parent is notified that the petitioner believes the parent’s rights should be involuntarily terminated, the parent is not a party to the adoption and is not required to file an answer, but the parent does have the right to appear to show cause why his or her rights to the child should not be terminated. After one parent or guardian’s rights have been surrendered or terminated, the other parent’s rights can be terminated, at least in certain circumstances, under a Code section very similar to how the first parent’s rights can be terminated.
Yet another section of the Code provides for notice to a biological father who is not the legal father, and possible termination of his rights. If a biological, non-legal father files a petition for legitimation after the mother surrenders her parental rights, the court can consider the mother’s affidavit (required with her surrender). If the court finds that he has not lived with or supported the child or the pregnancy, there is a rebuttable presumption that he abandoned his opportunity interest to legitimate the child, and the court can deny the petition for legitimation. This precludes the father from participating in any further adoption proceedings. If a biological father’s identity is unknown, then if the petitioner provides a certificate that there is no one on the Putative Father Registry who acknowledges paternity, or possible paternity for the child, then there is a rebuttable presumption that the biological father who is not the legal father is not entitled to notice of the proceedings. If the presumption is not rebutted, the court “shall” enter an order terminating the unnamed biological father’s rights to the child.
Another change to the Adoption Code is that expectant mothers (and fathers) can now receive a broader range of financial assistance. While inducements remain prohibited (and advertising prohibitions should be reviewed), certain assistance is permissible. A licensed child-placing agency can pay for or reimburse “reasonable living expenses for the biological mother”; an attorney is limited to “reasonable expenses for rent, utilities, food, maternity garments, and maternity accessories for the biological mother” and must pay from the attorney’s trust account. An agency or attorney can assist with medical expenses directly related to the pregnancy, hospitalization for the birth, and medical care for the child. Either can also assist with counseling or legal services for a biological mother or father if directly related to the adoption. Any such assistance must be included in the accounting required with an adoption petition. Finally, the new law on financial assistance criminalizes fraud such as where a birth mother receives assistance without disclosing that another agency or attorney is also providing assistance.
In the petition for adoption, the petitioner must now include information about any guardians and legal custodians, other adoption proceedings, and any claims to physical custody or visitation rights (there is a continuing duty to report). Furthermore, even if a legal mother states that her husband is the child’s biological father, the petitioner must include a certificate from the Putative Father Registry to confirm that no other male has expressed an interest in the child (or that another male needs notice). The law still requires a petitioner to submit to a criminal background check but now includes that a proper and timely report done as part of the home study will satisfy the requirements and authorizes the court (not the investigative agent appointed by the court) to determine the acceptability of any criminal history.
With some exceptions, a court now must hear an uncontested adoption as soon as possible, but within 120 days. Under the new law, a court can allow a petitioner or witness to appear by electronic means, which appears to be another effort to ease the adoption process. Moreover, in determining whether adoption is in the child’s best interests, the court must consider fourteen factors which are detailed in the statute. A court can continue or discontinue a family member’s visitation rights, if any, as part of the adoption order as it deems in the child’s best interests (but note the recent decision Patten v. Ardis, 304 Ga. 140 (Jun. 29, 2018)).
If the court denies a petition for adoption, it must now provide specific findings of fact explaining the decision. Furthermore, if an adoption is denied, there are additional provisions about where the child shall go. There is still a six month deadline to challenge the adoption decree, and similarly the new law specifically adds that an action for fraud must be brought within six months. The new Code also lowers the age an individual must be to request adoption information, from 21 to 18, and details the information to be provided when access is granted.
Substantive changes such as those highlighted above are coupled with new practical requirements – for example, a notary must formally swear in witnesses and some of the forms mentioned above require an adult witness. The new statue also clarifies that sensitive information does not need to be redacted since adoption records are sealed. An understanding of the current laws and their impact on adoptions should better assist families, the Department, agencies, legal practitioners, and various non-legal practitioners as they address adoption matters. Finally, it will be important to monitor future court opinions which will surely develop Georgia’s adoption laws in the continuing effort to provide stable and permanent homes for Georgia’s adoptive children.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley