In some adoption cases, the absent parent is unavailable to sign a consent to the adoption. This might be due to the fact they can’t be located, or that they simply refuse to consent. Under California law, if the absent parent is the mother or a “presumed” father, there are options to terminate their parental rights. (A “presumed” father is one who is named on the birth certificate, was married to the mother of the child, had the child in his home and held out the child as his own, or in some cases, his paternity established by court order. Birth fathers not falling into these categories are considered “alleged” fathers and may have weaker rights, controlled by different laws.)
Family Code section 7822 (often referred to as the “abandonment” section) permits the adoptive parent or parents to ask the court to terminate the rights of the absent parent and allow the adoption to proceed without their consent. For stepparent adoptions the usual sub-section cited is (a)(3), stating an action to terminate parental right can be brought when:
“One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.”
For traditional adoptions (adopting a newborn for example, or a child from foster care) a different sub-section is cited. Sub-section (a)(2) provides the termination of parental rights action can be brought when:
“The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.”
Family Code section 7822(b) explains that the mere lack of failing to provide support or to communicate with the child is presumptive evidence of the required “intent to abandon.” The statute also allows the court to ignore only “token” support or contact by the absent parent.
The actual title of the filing for abandonment is called the Petition for Freedom from Parental Custody and Control. A report from the investigating agency will be required, summarizing the case for the judge, as mandated by Family Code section 7851. Efforts must be made to find the absent parent, or notice by publication will be required. A court date is set and if the absent parent does not appear, a court can terminate the parental rights of the absent parent if the legal requirements have been met, normally after brief testimony from the adopting parent (and spouse if a stepparent adoption). If the absent parent objects, a trial date will be set.
This is only a brief explanation of Family Code section 7822 and other issues can apply. Also, there are other means by which to terminate parental rights (e.g. Family Code sections 7662, 8604; Probate Code section 1516.5).
By Randall Hicks (January 4, 2019)
Law Offices of Randall Hicks / The Stepparent Adoption Center
Offices in Riverside, San Diego, Los Angeles and Irvine