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Since September 1, 2018, adoptions have been easier in Georgia. The state’s adoption code has been significantly revised, making some laws that have not been touched since 1990 clearer and more modern. “While the changes are huge, from residency requirements for adoptive parents to support for birth parents, this article sheds light on many of the new laws.
Georgia law provides that a child may be adopted in one of several ways, including (1) through the Department of Human Services (“Department”) or the Recruitment Agency (including from other states), (2) by the spouse the child’s parent, (3) by a relative (related by blood or marriage as grandparents, great-grandparents, aunt, uncle, great-aunt, great-uncle or sibling) and (4) by a third party who is neither stepparent nor relative of the child. Adult adoptions and adoptions of foreign-born children are also possible but are not specifically discussed here.
In Georgia, the highest courts have exclusive jurisdiction over adoptions. An individual may apply to adopt a child if the individual is a Georgia resident at the time of the application that previously required a six month stay here. The new laws also broadened the options for non-Georgia adopting citizens.
In general, the adoption process involves relinquishing or ending the rights of the child’s parents. How this is done is detailed in the statutes, but there are also new forms for handovers and other necessary affidavits. For example, every temporary guardian and all persons with custody of the child must now be identified in an “affidavit from the mother”. There is also a new pre-natal surrender affidavit. The forms provide that a non-resident who gives up his or her rights shall consent to the jurisdiction in Georgia for all lawsuits related to adoption.
Several aspects of third party adoption waiver differ from other types of adoptions. A third party who is given a child voluntarily is financially responsible for the child from the day of the handover. In addition, in the case of adoptions by third parties, an application for adoption must be submitted within 60 days of the offense being carried out. An applicant must show good faith in order to submit the application beyond this time. If the petition is not delivered in time or is not granted, the transferring parents can now choose to relinquish their rights in favor of an agency approved outside of the state. In addition, in the case of adoptions by third parties, at least some of the reporting requirements to the ministry have been abolished.
Even if a parent signs a transfer so that a child can be adopted, he or she has the right to revoke it – but this must now be done within four days of signing the transfer instead of the previously permitted 10 days. In practice, this reduces the time window in which, for example, a mother can change her mind about placing the child for adoption. In addition, the new law specifically excludes the use of registered mail as a means of revoking a surrender.
If a mother waives her rights, but does not revoke them in time, she can no longer agree to the legitimation request of a biological, illegitimate father (to become the legal father). This was added to prevent a mother from attempting to reverse placement after the withdrawal period has expired via the separate legitimation action. (The new language expressly states that if the child is legitimized and the application for adoption is unconditionally withdrawn or rejected, the mother’s waiver of adoption rights will by law be lifted and her rights restored.)
Under certain circumstances, the rights of a legal parent can be involuntarily terminated (e.g. the parent has left the child). If a petitioner makes such an allegation, he or she can attempt to serve the parents through disclosure while at the same time attempting to perfect service through other appropriate means (preferably personal service). A petitioner does not need to obtain and receive a notification request through publication, which saves time and money. However, in order to invoke notification by publication, the petitioner has to point out that after careful efforts the notification by other means was unsuccessful. If a parent is notified that the petitioner believes the parent’s rights should be involuntarily terminated, the parent is not involved in the adoption and does not need to submit a response, but the parent has the right to appear to show why his or her rights to the child should not be terminated. After the rights of one parent or guardian have been relinquished or terminated, the rights of the other parent may be terminated, at least in certain circumstances, under a section of the Code very similar to terminating the rights of the first parent.
Another section of the Code provides for the notification of a biological father who is not the legal father and the possible termination of his rights. If a biological, illegitimate father submits an application for legitimation after the mother has given up her parental rights, the court can take into account the mother’s affidavit (required for the surrender). If the court determines that he did not live or assist with the child or the pregnancy, there is a rebuttable presumption that he has given up his occasional interest in the child’s legitimation and the court can reject the application for legitimation. This rules out the father’s participation in another adoption process. If the identity of the biological father is unknown and the petitioner provides a certificate that there is no one in the alleged father register who recognizes paternity or possible paternity for the child, there is a rebuttable presumption that the biological father, not the legal one Father has no right to have the proceedings reported. If the presumption is not rebutted, the court “should” terminate the rights of the unnamed biological father to the child.
Another change to the adoption code is that expectant mothers (and fathers) can now receive a wider range of financial support. While incentives are still banned (and bans on advertising should be reviewed), certain assistance is allowed. An approved child placement agency can assume or reimburse “reasonable living costs for the biological mother”; an attorney is limited to “reasonable expenses for rent, utilities, food, maternity clothing, and maternity supplies for the birth mother” and must be paid from the attorney’s escrow account. An agency or lawyer can assist you with medical expenses directly related to pregnancy, hospitalization for childbirth, and medical care for the child. Both can also provide advice or legal advice to a birth mother or birth father if they are directly related to the adoption. Such assistance must be included in the settlement with an adoption request. Finally, the new Financial Assistance Act criminalizes fraud, for example when a birth mother receives assistance without disclosing that another agency or lawyer is also providing assistance.
In the adoption application, the petitioner must now provide information about any guardians and carers, other adoption procedures and any claims to custody or visiting rights (there is still an obligation to report). Even if a legal mother states that her husband is the biological father of the child, the petitioner must enclose a certificate from the alleged father’s register confirming that no other man has expressed interest in the child (or that another man needs to be notified) . The law still requires a petitioner to undergo a criminal background check, but now provides that a proper and timely home study report meets the requirements and empowers the court (not the court-appointed investigator) to determine the acceptability of any criminal record .
With a few exceptions, a court must now recognize 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 electronically, which appears to be another attempt to simplify the adoption process. In addition, when determining whether an adoption is in the best interests of the child, the court must take into account fourteen factors listed in the law. A court can continue or terminate the visitation rights of a family member, if any, as part of the adoption order if it considers this to be in the best interests of the child (however, please note the recent decision of Patten v. Ardis, 304 Ga. 140 (June 29, 2018. ).)).
If the court rejects an application for adoption, it must now present specific factual findings to justify the decision. In addition, if adoption is refused, there are additional provisions about where the child should go. There is still a six month deadline to challenge the adoption decree, and similarly, the new law specifically states that a fraud lawsuit must be filed within six months. The new Code also lowers the age a person must be to request adoption information from 21 to 18 years and defines the information that must be provided when granting access.
Factual changes such as the above come with new practical requirements – for example, a notary public must formally swear witnesses and some of the above forms require an adult witness. The new statutes also make it clear that sensitive information does not need to be blacked out as the adoption records are sealed. Understanding the laws in force and how they affect adoption should better assist families, the ministry, government agencies, legal practitioners, and various non-lawyers in handling adoption issues. Finally, it will be important to monitor future court opinions, which will certainly develop Georgia’s adoption laws to provide stable and permanent homes for Georgian adoptive children.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
