§ 16-1504 — NECESSARY CONSENT TO ADOPTION

Idaho § 16-1504

• Jurisdiction: Idaho
• Title 16: JUVENILE PROCEEDINGS
• Ch. 15: ADOPTION OF CHILDREN

Text

(1) Consent to adoption of a child is required from:
(a) The adoptee, if he is more than twelve (12) years of age, unless he does not have the mental capacity to consent;
(b) Both parents or the surviving parent of an adoptee who was conceived or born within a marriage;
(c) The mother of an adoptee born outside of marriage;
(d) Any biological parent who has been adjudicated to be the child’s biological father by a court of competent jurisdiction prior to the mother’s execution of consent;
(e) An unmarried biological father of an adoptee only if the requirements and conditions of subsection (3)(a) or (b) of this section have been proven;
(f) Any legally appointed custodian or guardian of the adoptee;
(g) The adoptee’s spouse, if any;
(h) An unmarried biological father who has filed a voluntary acknowledgment of paternity with the vital statistics unit of the department of health and welfare pursuant to section 7-1106, Idaho Code; and
(i) The father of an illegitimate child who has adopted the child by acknowledgment.
(2) Consent to adoption of an adult is required from:
(a) The adoptee, or the guardian or conservator of an incapacitated adoptee, if a guardian or conservator has been appointed; and
(b) The adoptee’s spouse, if any.
(3) In accordance with subsection (1) of this section, the consent of an unmarried biological father is necessary only if the father has strictly complied with all requirements of this section.
(a)(i) With regard to a child who is placed with adoptive parents more than six (6) months after birth, an unmarried biological father shall have developed a substantial relationship with the child, taken some measure of responsibility for the child and the child’s future, and demonstrated a full commitment to the responsibilities of parenthood by financial support of the child, of a fair and reasonable sum and in accordance with the father’s ability, when not prevented from doing so by the person or authorized agency having lawful custody of the child, and either:
1. Visiting the child at least monthly when physically and financially able to do so, and when not prevented from doing so by the person or authorized agency having lawful custody of the child; or
2. Having regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child, and when not prevented from doing so by the person or authorized agency having lawful custody of the child.
(ii) The subjective intent of an unmarried biological father, whether expressed or otherwise, unsupported by evidence of acts specified in this subsection shall not preclude a determination that the father failed to meet any one (1) or more of the requirements of this subsection.
(iii) An unmarried biological father who openly lived with the child for a period of six (6) months within the one (1) year period after the birth of the child and immediately preceding placement of the child with adoptive parents, and who openly held himself out to be the father of the child during that period, shall be deemed to have developed a substantial relationship with the child and to have otherwise met all of the requirements of this subsection.
(b) With regard to a child who is under six (6) months of age at the time he is placed with adoptive parents, an unmarried biological father shall have manifested a full commitment to his parental responsibilities by performing all of the acts described in this subsection and prior to the date of the filing of any proceeding to terminate the parental rights of the birth mother; the filing of any proceeding to adopt the child; or the execution of a consent to terminate the birth mother’s parental rights under the provisions of section 16-2005 (5), Idaho Code, whichever occurs first. The father shall have strictly complied with all of the requirements of this subsection by:
(i) Filing proceedings to establish paternity under section 7-1111, Idaho Code, and filing with that court a sworn affidavit stating that he is fully able and willing to have full custody of the child, setting forth his plans for the care of the child, and agreeing to a court order of child support and the payment of expenses incurred in connection with the mother’s pregnancy and the child’s birth;
(ii) Filing a notice of the proceedings to establish his paternity of the child with the vital statistics unit of the department of health and welfare pursuant to section 16-1513, Idaho Code; and
(iii) If he had actual knowledge of the pregnancy, paying a fair and reasonable amount of the expenses incurred in connection with the mother’s pregnancy and the child’s birth, in accordance with his means, and when not prevented from doing so by the person or authorized agency having lawful custody of the child.
(4) An unmarried biological father whose consent is required under subsection (1) or (3) of this section may nevertheless lose his right to consent if the court determines, in accordance with the requirements and procedures of the termination of parent and child relationship act, sections 16-2001 through 16-2015, Idaho Code, that his rights should be terminated, based on the petition of any party as set forth in section 16-2004, Idaho Code.
(5) In any adoption proceeding pertaining to a child born out of wedlock, if there is no showing that an unmarried biological father has consented to or waived his rights regarding a proposed adoption, the petitioner shall file with the court a certificate from the vital statistics unit of the department of health and welfare, signed by the state registrar of vital statistics, stating that a diligent search has been made of the registry of notices from putative fathers, of a child born out of wedlock, and that the putative father involved has not filed notice of the proceedings to establish his paternity or, if a filing is found, stating the name of the putative father and the time and date of filing. That certificate shall be filed with the court prior to the entrance of the final decree of adoption.
(6) An unmarried biological father who does not fully and strictly comply with each of the conditions provided in this section is deemed to have waived and surrendered any right in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, or for termination of parental rights and his consent to the adoption of the child is not required unless he proves, by clear and convincing evidence, all of the following:
(a) It was not possible for him, prior to the filing of a proceeding to terminate parental rights of the birth mother; the filing of any proceeding to adopt the child; or the execution of a consent to terminate the birth mother’s parental rights under the provisions of section 16-2005 (5), Idaho Code, whichever occurs first, to:
(i) Commence proceedings to establish paternity of his child in accordance with section 7-1111, Idaho Code; and
(ii) File notice of the filing of proceedings to establish his paternity of the child with the vital statistics unit of the department of health and welfare in accordance with section 16-1513, Idaho Code;
(b) His failure to timely file notice of the filing of proceedings to establish his paternity of the child with the vital statistics unit of the department of health and welfare in accordance with section 16-1513, Idaho Code, and his failure to commence timely proceedings to establish paternity of his child in accordance with section 7-1111, Idaho Code, were through no fault of his own; and
(c) He filed notice of the filing of proceedings to establish paternity of his child in accordance with section 7-1111, Idaho Code, with the vital statistics unit of the department of health and welfare in accordance with section 16-1513, Idaho Code, and filed proceedings to establish his paternity of the child within ten (10) days after the birth of the child. Lack of knowledge of the pregnancy is not an acceptable reason for his failure to timely file notice of the commencement of proceedings or for his failure to commence timely proceedings.
(7) A minor parent has the power to consent to the adoption of his or her child. That consent is valid and has the same force and effect as a consent executed by an adult parent. A minor parent, having executed a consent, cannot revoke that consent upon reaching the age of majority or otherwise becoming emancipated.
(8) No consent shall be required of, nor notice given to, any person whose parental relationship to such child shall have been terminated in accordance with the provisions of either chapter 16 or 20, title 16, Idaho Code, or by a court of competent jurisdiction of a sister state under like proceedings, or in any other manner authorized by the laws of a sister state. Where a voluntary child placement agency licensed by the state in which it does business is authorized to place a child for adoption and to consent to such child’s adoption under the laws of such state, the consent of such agency to the adoption of such child in a proceeding within the state of Idaho shall be valid and no further consents or notices shall be required.
(9) The legislature finds that an unmarried biological father who resides in another state may not, in every circumstance, be reasonably presumed to know of and strictly comply with the requirements of this chapter. Therefore, when all of the following requirements have been met, that unmarried biological father may contest an adoption prior to finalization of the decree of adoption and assert his interest in the child:
(a) The unmarried biological father resides and has resided in another state where the unmarried mother was also located or resided;
(b) The mother left that state without notifying or informing the unmarried biological father that she could be located in the state of Idaho;
(c) The unmarried biological father has, through every reasonable means, attempted to locate the mother but does not know or have reason to know that the mother is residing in the state of Idaho; and
(d) The unmarried biological father has complied with the most stringent and complete requirements of the state where the mother previously resided or was located in order to protect and preserve his parental interest and rights in the child in cases of adoption.
(10) An unmarried biological father may, under the provisions of section 7-1107, Idaho Code, file a proceeding to establish his paternity prior to the birth of the child; however, such paternity proceeding must be filed prior to the date of the filing of any proceeding to terminate parental rights of the birth mother; the filing of any proceeding to adopt the child; or the execution of a consent to terminate the birth mother’s parental rights under the provisions of section 16-2005 (5), Idaho Code, whichever occurs first.

Legislative History

[(16-1504) 1879, p. 8, sec. 4; Act Feb. 5, 1887; R.S., sec. 2548; reen. R.C. & C.L., sec. 2703; C.S., sec. 4685; I.C.A., sec. 31-1104; am. 1957, ch. 189, sec. 1, p. 376; am. 1961, ch. 225, sec. 1, p. 361; am. 1969, ch. 188, sec. 1, p. 554; am. 1970, ch. 101, sec. 1, p. 253; am. 1990, ch. 27, sec. 1, p. 42; am. 1994, ch. 393, sec. 1, p. 1243; am. 1996, ch. 195, sec. 2, p. 610; am. 2000, ch. 171, sec. 2, p. 423; am. 2002, ch. 233, sec. 6, p. 672; am. 2013, ch. 138, sec. 4, p. 324; am. 2014, ch. 140, sec. 1, p. 379; am. 2020, ch. 330, sec. 1, p. 952; am. 2023, ch. 10, sec. 3, p. 36.]