FAQ

Kathleen O’Brien chats about adoption law with Kevin Live! 6/16/11

Please be aware that laws vary from state to state. Law evolves, and is subject to change.

Also, please be aware that the general answers offered here are not intended to be construed as legal advice for any specific situation. This is intended to be a guide, not a definitive answer.

Below are questions commonly asked regarding Oregon adoptions.

The father of my child has not seen her since she was two months old. We were never married, and he has not paid any
support. Now I’m happily married and my husband wants to adopt my little girl. Do I need the consent of my child’s biological
father?

If you have been a resident of Oregon for at least six months, Oregon law governs this adoption, even if the
father of your child lives elsewhere. Under current Oregon law, if paternity was not established, the biological father is not a
“legal” father, and his consent to the adoption is not required. However, there is a requirement that a notice of the adoption be
sent to his parents (the grandparents). This requirement of notice to the grandparents can be waived by the court for good cause.

Please be aware that the Oregon law which does not require notice to a “putative” father (one for whom
legal paternity has not been established) is different than most states, and there is always a possibility that the law could be
challenged on due process (constitutional) grounds. The best practice is to have the consent of the biological father, legal or not; or to have his legal rights
terminated after a hearing.

My domestic partner adopted my biological child several years ago. Recently we have separated, although we were never married (we are gay, if it matters). What do I have to do now to prevent my ex-partner from having contact with my son?

First, under Oregon law, it makes no difference in the above fact situation whether you are gay or straight or
legally married or not. The question is can the biological parent terminate the parental rights of the adoptive parent, if the
relationship between the parents changes. The answer is a qualified “no.”

There is no difference in law between an adoptive parent and a biological parent. A parent has obligations
toward the child until the child reaches adulthood. It is possible to seek the assistance of the court process toward the division
of obligations toward the child, even where there was not a legal marriage. This might also include the termination of parental
rights in some situations.

If your ex-partner wants to voluntarily surrender parental rights, generally that can only be done where there
is another adult willing to step in and become the second legal parent. Sometimes this can be a grandparent or someone else who is
not in a romantic partnership with the first parent.

Counseling and mediation are supportive and helpful, both for the separating partners and for the child.
Children will adapt to difficult situations when the adults are mature and successful at handling the situation. But it is a very
difficult thing to go through a divorce or break-up without experiencing very powerful emotions. You need to try very hard to work
through your strong emotions (sadness, anger, jealousy, bitterness, grief, etc.) in a healthy way, knowing that time will eventually help more than anything. Children are sensitive and inexperienced at handling adult emotions. They need the adults in their lives to behave like adults when real-life situations become difficult.

Solutions can be found. The best thing to do is to reach out for help. Good luck to you!

A potential client is a single mom. “Deadbeat dad” wants to terminate parental rights. Mom isn’t in any type of relationship, but mom’s sister is a regular figure in the child’s life. Can Mom and her Sister adopt child so that he still has two parents on file?
I know that if these two women were not sisters but were romantically involved, they could adopt each others’ kids.

The court will allow uncoupled parties (e.g. sister and sister; or anyone else who meets the DHS criteria to
adopt) to become the legal parents of a child through adoption. When one parent retains parental rights, as is the case in a typical step-parent adoption, and is also the case for unmarried partners, and is also the case in your scenario, then the legal parent’s
consent, plus the adopting parent clearing a criminal history background check, substitute for a home study. So this is not an
expensive or time-consuming procedure.

It used to be that a spouse had to join in a petition for adoption, but it is no longer required. For instance, this sister’s mother (but not the mother’s husband) can jointly petition to adopt.

It also used to be that DHS required a home study in the case where the petitioners were not married to each
other (e.g. “living together,” or gay). Those different standards have been obviated.

DHS may require a home study of a second home where the parties do not reside together, and the adopting person is not a family member. One example I have seen of that is when a cooperating divorced couple did their step-parent adoption a few
years after their divorce.

Oregon is unique among the states in not requiring any notice of adoption to a putative father who has not
taken steps to establish his paternity or assert his rights by his actions. Unmarried fathers who wish to prevent a birth mother
from placing a child for adoption should take steps before the birth of the child, even if paternity is not admitted, because a child can be placed for adoption the same day it is born.

Are adoption records sealed by law?

Yes. But be aware that adoption is strictly a creature of statute; there was no adoption at common law. Adoption records in Oregon were not sealed until 1937 (stigma of illegitimacy), and the direction is toward openness. I predict that public policy will continue in the direction of openness of records, and that eventually the importance of access to a person’s DNA profile will be more important than the considerations of privacy.

At the present time, medical and sociological history information is gathered at the time of adoption, and the records are maintained by DHS, and an adopted person may register with the state and gain access to this information at the age of 21.

In addition, Oregon maintains a Voluntary Adoption Registry for persons who were adopted in Oregon. The individual or their biological parent may register, and the state will disclosure the other party’s identity (name and address) when the adopted person is 21.

I have a 4 year old son from a previous marriage and I re-married in Oct of last year. His father has not been in the picture since he was a few months old. We are
divorced and he has no visitation in almost 4 years (and had only 2 visits ever) and has not paid support or even been around. I have not heard from him in almost 3 years and have no idea where to find him – just know he moved out of state. My husband would like to adopt my son, but I have no means of getting consent from biological father. How do I do this?

The substitute for consent is to comply with the requirements of due process, which involves giving him formal notice and scheduling a hearing at which he has an opportunity to appear. If you can determine an address for him (which is easier than it used to be; there are lots of tools on the internet), then we can have him served; but if it is impossible to determine an address for him, then it is up to the court to allow you to “serve” him by, e.g. publication in the legal notices in a paper of general circulation.