Hi! I tried to get my answers from the previous posts but none seem to be in California and I wasn't sure how the laws differed. So here's my "dilemma"

My husband has filed papers to adopt my son. The birth father is not on the birth certificate. Birth father has visitation for 2 hours every Sunday (court ordered when my son was a couple weeks old), he has seen my son maybe 4 times the beginning of last year. Prior to that no communication was made because he refused to have anything to do with my son. There is court ordered child support, which I do not receive (one payment in the last 12 months) and the back pay is currently up to $21K (my son is almost 5!). Anyways, my question is this. Seeing as how the birth father is not on the birth certificate, has no physical or legal custody, do I need his consent? Or if he wants to fight the adoption can he? Any advice or comments would be GREATLY appreciated!!!

Circumstances That Are Grounds for Termination of Parental Rights
Welf. & Inst. Code §§ 361; 361.5; 366.26


The parent has abandoned the child.
The parent is unable to discharge his or her parental duties due to:
Mental disability
Extensive, abusive, and chronic use of alcohol or drugs
Incarceration or institutionalization
The parent has physically or sexually abused the child.
The parent’s conduct or neglect has resulted in serious physical injury to the child.
The parent has refused reunification services.
The parent has been convicted of a violent felony, indicating parental unfitness.
The child has been left without any provision for his or her support.
The parent has failed to visit or contact the child for 6 months.
The whereabouts of the parent have been unknown for 6 months.
Parental rights to another child of the parent have been involuntarily terminated.
The parent has caused the death of another child through abuse or neglect.
The parent has subjected the child to severe or repeated sexual or physical abuse.
The child was conceived as a result of a sexual offense against a child.
The parent willfully abandoned the child, and the abandonment itself constituted a serious danger to the child.



Circumstances That Are Exceptions to Termination of Parental Rights
Welf. & Inst. Code § 366.26


The court has found a compelling reason for determining that termination would be detrimental to the child.
The parents have maintained regular visitation and contact with the child.
A child 12 years of age or older objects to termination of parental rights.
The child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances.
There would be substantial interference with a child’s sibling relationship.



Who Must Consent to an Adoption
Citation: Fam. Code §§ 8603; 8604


The birth parents, if living
The parent having custody if the other parent:
Fails to communicate with and support the child
Fails to respond to notice of adoption
A married person may not adopt a child without the consent of the spouse.


Age When Consent of Adoptee is Considered or Required
Citation: Fam. Code § 8602

A child 12 years of age or older must consent to the adoption.


When Parental Consent is not Needed
Citation: Fam. Code §§ 8604; 8606
The parent has:

Relinquished rights or had them terminated
Deserted the child
Willfully failed to contact or support the child for 1 year



When Consent Can Be Executed
Citation: Fam. Code §§ 8801.3; 8700


In a direct placement, consent may only take place after the discharge of the birth mother from the hospital. If the mother is required to be hospitalized longer than the child, consent may be given with verification of competency from her physician.
Relinquishment to an agency can take place any time after the birth of the child.


How Consent Must Be Executed
Citation: Fam. Code §§ 8801.3; 8814; 8700


In a direct placement, consent must take place in the presence of an Adoption Service Provider or other delegated agent, who has advised the parents of their rights.
In an agency adoption, a form is signed before two witnesses and acknowledged before an official of the agency.


Revocation of Consent
Citation: Fam. Code §§ 8814.5; 8700


In a direct placement, after consent has been given, the parents have 30 days to submit a signed revocation and request the return of the child or sign a waiver of the right to revoke consent.
In an agency adoption, consent is final and may only be rescinded by mutual consent, unless the birth parent has specified an adoptive parent and that placement is not finalized; then the parent has 30 days to rescind.



Intestate Inheritance Rights for Adopted Children

Birth Parents in Relation to Adopted Person
Citation: Prob. Code § 6451

A natural parent may not inherit from or through a child on the basis of the parent-child relationship if someone, other than the spouse or surviving spouse of the natural parent, has adopted the child.


Adoptive Parents in Relation to Adopted Person
Citation: Prob. Code § 6450

An adoption severs the relationship of parent and child between an adopted person and a birth parent of the adopted person unless both of the following requirements are satisfied:
The birth parent and the adopted person lived together at any time as parent and child, or the birth parent was married to or cohabiting with the other birth parent at the time the person was conceived and died before the person's birth.
The adoption was by the spouse of either of the birth parents or after the death of either of the birth parents.
Neither a birth parent nor a relative of a birth parent, except for a wholeblood brother or sister of the adopted person or the issue of that brother or sister, inherits from or through the adopted person on the basis of a parent and child relationship between the adopted person and the birth parent that satisfies the requirements listed above, unless the adoption is by the spouse or surviving spouse of that parent.

For the purpose of this section, a prior adoptive parent and child relationship is treated as a birth parent and child relationship.


Rights of Presumed (Putative) Fathers

Does State have a Putative Father Registry: No

Registry/Paternity Requirements to Receive NoticeCitation: Fam. Code §§ 7662; 7663; 7666


The putative father must bring an action declaring the existence of a father-child relationship within 30 days of service of the notice of adoption proceedings, or the birth of the child, whichever is later.
To identify the natural father, the court shall cause an inquiry to be made of the birth mother and any other appropriate person.
Notice must be given at least 10 days prior to a proceeding to every person identified as the natural father or a possible natural father.



Who May Adopt
Citation: Family Code §§ 8600; 8601

A child may be adopted by an adult who is at least 10 years older than the child. An exception to this requirement may be made if the adoptive parent is a stepparent, sister, brother, aunt, uncle, or first cousin of the child and, if that person is married, is adopting jointly with his or her spouse.


Who May Be Adopted
Citation: Family Code § 8600

An unmarried minor may be adopted by an adult.


Who May Place a Child for Adoption
Citation: Family Code §§ 8801.5; 8704

The child may be placed by any of the following:
The child's birth parent in an independent adoption
A licensed adoption agency or the department that has custody of the child








In my state it doesn't matter if the parent resumes visitation or support after the specified period to determine abandonment (in your state it looks like 1 year, in my state it is 90 days). As you can see the laws are very different from state to state. You may want to (if you're not already using an attorney) see if that's the case in CA. Whether or not he is on the birth certificate may not matter at this point as he was given specified visitation and ordered to pay support by the court. As that ruling has been allowed to stand for the last 5 years (you didn't challenge it or appeal it and by now it's too late), in the courts eyes, he IS the father and is entitled to notice. Now, if he doesn't respond to notice within 30 days of the notice as stated in the CA laws above, then your husband should have a relatively easy time having the adoption approved. After that point his consent isn't needed. However, if he does respond, you will have to prove your contention that he is uninvolved with the child and hasn't supported him.


Good luck.


OSM