Adoption and Name Change
Important Notes: for Adult Adoptions, scroll down to Article IV at the end. Name Changes can be done as part of or separetely from adoption (Cal. Civ. Pro. §§ 1275-1279.6, Fam. Code § 306.5).
I. Adoption of Minors (Fam. Code §§ 8600 et seq.)
The general principle is that no adoption of a minor can be granted without the written consent of the birth parents, except where parental rights have been legally terminated. The minor's consent is also required if they are 12 years of age or older (Fam. Code § 8602).
Stepparent and Relative Adoptions (Fam. Code §§ 9000–9007)
This process facilitates adoption by a stepparent or a close relative, only requiring the termination of the non-custodial parent's rights (Fam. Code § 9000).
Statutory Basis for Termination: The primary statutory mechanism for proceeding without the non-custodial parent's consent is a finding that the parent has willfully failed to communicate with and support the child for a period of one year or more (Fam. Code § 8604, referencing the grounds for termination under Fam. Code § 7822).
Case law, such as In re Adoption of O.M. (2018) 24 Cal.App.5th 1215, clarifies that the failure to contact must be willful and without legal excuse; mere inability to contact the child due to the custodial parent's actions is not, by itself, sufficient to satisfy this standard.
Court Investigation Fee: The mandatory investigation conducted by a court-appointed official or probation officer is financed by the petitioner, who is liable for a statutory fee, not to exceed $700 (Fam. Code § 9002). The investigator's report is crucial as it details the circumstances of the child and family dynamics.
Independent Adoption (Fam. Code §§ 8800–8823)
Independent adoptions involve a direct relationship between the birth parent(s) and the prospective adoptive parents, personally chosen by the birth parent(s) (Fam. Code § 8801).
Consent Timeline: To protect the birth mother from coercion, the Independent Adoption Placement Agreement (IAPA), which constitutes consent, cannot be signed until after the mother is medically discharged from the hospital following the child's birth (Fam. Code § 8801.3).
Revocation Standard: The IAPA provides a 30-day period during which the birth parent may unconditionally revoke consent and request the child’s return (Fam. Code § 8815). After this 30-day window, revocation requires a court hearing and a judicial finding that it is in the child’s best interest, considering factors like the child's age, emotional bonding, and the stability of the respective homes (Fam. Code § 8815).
Investigation Fee: The prospective adoptive parents must pay a fee for the required state investigation, currently set at $4,500 (Fam. Code § 8810), though this fee can be reduced to $500 for petitioners who meet low-income eligibility requirements.
Agency Adoption (Fam. Code §§ 8700–8720)
Agency adoptions involve the California Department of Social Services (CDSS) or a licensed adoption agency assuming temporary custody of the minor.
Finality of Relinquishment: When a birth parent voluntarily relinquishes the child to the agency, parental rights are terminated upon the filing of the relinquishment. Once filed, it can only be rescinded by the mutual written consent of the agency and the birth parent, unless conditional terms were not met (Fam. Code § 8700(f)).
Financial Assistance for Adoptive Families: Adoptive parents of children placed through an agency who have special needs (often children from foster care) are eligible for the Adoption Assistance Program (AAP), which provides monthly financial assistance (Welf. & Inst. Code § 16120 et seq.). They are also eligible for the Non-Recurring Adoption Expense Program, which reimburses up to $400 per child for documented adoption-related costs (Fam. Code § 8714(b)).
Agency Fee Cap: Public adoption agency fees for their services are generally capped at $500 and are subject to waiver or reduction for families of low income or those adopting hard-to-place children.
II. Legal Status of Fathers in Adoption Proceedings
Presumed Father (Fam. Code § 7611)
A Presumed Father is afforded the maximum constitutional protection and full standing as a legal parent, equal to that of the mother. This status is based on actions that demonstrate commitment to the child, which the law deems more important than genetics alone.
Statutory Definition: A man is presumed to be a father if he meets any of the criteria in Fam. Code § 7611. The most common ways to establish this status relevant to adoption include:
- Being married to the child's mother when the child is born, or within 300 days of the marriage ending (Fam. Code § 7611(a)).
- Receiving the child into his home and openly holding out the child as his natural child (Fam. Code § 7611(d)).
- Signing a Voluntary Declaration of Parentage (VDOP), which carries the same weight as a court judgment of paternity (Fam. Code § 7573).
Rights and Consent: A presumed father has the same full rights as the mother. His consent is necessary for the adoption to proceed, and his parental rights cannot be terminated without a finding of unfitness (e.g., willful abandonment, abuse, or neglect) (Fam. Code § 8603).
Case Law on Status: In re R.R. (2004) 124 Cal.App.4th 1177: This case demonstrated the power of the presumed status, ruling that a father who was conclusively presumed to be the father (Fam. Code § 7540) retained that legal status in a dependency and adoption context, even after DNA testing proved he was not the biological father. His rights still had to be legally terminated to clear the path for the child's adoption.
Waiver: A presumed father may voluntarily waive his right to notice and consent to the adoption by executing a form developed by the Department of Social Services (Fam. Code § 7660.5).
The Alleged Father: Limited Rights and Swift Termination
In California adoption law, the distinction between a presumed father (Fam. Code § 7611) and a father who has not achieved that status is critical. A father who is merely biological (often termed a Natural or Alleged Father) possesses only inchoate (undeveloped) rights, which are highly vulnerable to termination in the face of a pending adoption.
Definition and Constitutional Status: An Alleged Father is a man identified as a possible father but who has not taken the steps necessary to establish legal parentage under Fam. Code § 7611. Due to their failure to promptly establish a protected relationship, they do not possess the fundamental constitutional liberty interest in the child's care and custody that is afforded to a Presumed Father. This constitutional distinction was established by the U.S. Supreme Court in cases like Quilloin v. Walcott and Lehr v. Robertson.
Termination Mechanism (Fam. Code §§ 7662, 7664): To clear the path for an adoption, the Alleged Father must be served with a Notice of Alleged Paternity or a similar notice of the adoption proceeding.
If the father fails to appear or otherwise fails to file a petition to establish his paternity or assert his claim to custody within 30 days of service (or the child's birth, whichever is later), the court may issue an order declaring that his consent is not required for the adoption (Fam. Code § 7662).
The court, in dispensing with his consent, makes a finding that the adoption is in the child's best interest (Fam. Code § 7664). This process is designed to be swift to reduce the child's period of legal uncertainty.
The Adoption of Kelsey S. Exception
The strict termination rules for Alleged Fathers are tempered by a constitutional protection recognized by the California Supreme Court.
Adoption of Kelsey S. (1992) 1 Cal.4th 816: The Court held that when a biological father demonstrates that he has diligently attempted to assume parental responsibility, the mother or prospective adoptive parents cannot unilaterally defeat his right to a relationship with the child simply by preventing him from establishing the § 7611 presumption. This established the "Kelsey S. Father" category for a man who is biological and satisfies three conditions:
- He is the biological father of the child.
- He has promptly and diligently sought to assume parental responsibility.
- He was thwarted in his efforts to achieve Presumed Father status (§ 7611(d)) by others.
Effect of Kelsey S. Status: If a court grants a Father Kelsey S. status, his rights are elevated significantly. The court must then hold a hearing to determine whether retaining his parental rights (thereby preventing the adoption) is in the child's best interest (Fam. Code § 7664). This elevates the father's claim beyond the routine "Alleged Father" termination.
Judicial Clarification and Statutory Limitations
The Supreme Court later clarified the distinction between a presumed father and other fathers, particularly in the context of the Welfare and Institutions Code (Welf. & Inst. Code), which governs dependency and foster care adoptions.
In re Zacharia D. (1993) 6 Cal.4th 435: This ruling established that the statutory rights afforded to a "parent" under the Welfare and Institutions Code, such as the right to reunification services (Welf. & Inst. Code § 361.5) or immediate custody (§ 361.2), are reserved only for those who have achieved Presumed Father status (Fam. Code § 7611) or Adjudicated Paternity (Fam. Code § 7636) prior to the termination of the reunification period.
The Zacharia D. court ruled that a biological father who first asserts paternity after the statutorily defined reunification period has expired is not entitled to reunification services, even if he is later adjudicated as the father.
This strict interpretation emphasizes the judicial priority placed on the timely assumption of parental responsibility over mere genetics, reinforcing the legal necessity of securing Presumed Father status as early as possible to ensure full rights and statutory protection.
III. Financial and Ethical Regulations in California Adoptions
California law rigidly controls the financial aspects of adoption to safeguard the ethical principle that a child's placement must be based on the child's best interest, not monetary consideration. These regulations are primarily codified in Fam. Code § 8610 and Penal Code § 273.
Mandatory Financial Disclosure and Accounting
The court exercises strict oversight through mandated financial disclosure by the prospective adoptive parents.
Accounting Report Required (Fam. Code § 8610): All petitioners must file a full and detailed itemized accounting report of all disbursements of anything of value made or agreed to be made on their behalf. The report must detail the services received by either birth parent, the child, or any other person for whom payment was made. The report covers expenses related to:
- The child's birth.
- The placement of the child with the petitioners.
- Any medical or hospital care, counseling fees, or legal fees related to the adoption.
Purpose of Accounting: The judicial review of this document is a cornerstone of the legal process, ensuring that the financial transactions comply with Penal Code § 273 and that payments were made in good faith, without the unlawful intent to purchase consent or placement.
Lawful (Allowable) Payments and Conditions
Payments to a birth parent are permissible only under specific, strict, and non-contingent terms, emphasizing that the payment is a charitable act to aid the pregnancy, not payment for the child.
Permitted Expenses (Penal Code § 273(b)): It is lawfulto pay for reasonable and necessary expenses related to the birth mother and child, specifically covering:
- Maternity and Living Expenses: The payments must cover reasonable and necessary maternity-connected medical, hospital, and living expenses of the mother and child preceding and during confinement.
- Charitable Intent: The payment must be made as an act of charity.
- Non-Contingency Clause (Critical): The payments must not be contingent upon the placement of the child for adoption, the mother's consent to the adoption, or the mother's cooperation in the completion of the adoption. Payments made based on a contingency violate public policy and are a felony.
Case Law Guidance: Judicial review of the accounting report ensures that the payments adhere to the "reasonable and necessary" standard and do not include expenditures that violate the spirit of the law, such as excessive travel or luxury accommodations.
Prohibited Payments and Criminal Penalties
Unlawful Receipt of Funds (Penal Code § 273(d)): It is unlawful for a birth mother to accept payments that exceed the reasonable maternity-related medical, hospital, and necessary living expenses described in § 273(b).
Fraudulent Acceptance of Funds: Birth parents are prohibited from obtaining financial benefits from two or more prospective adoptive families if they knowingly fail to disclose that other interested families exist. This provision aims to prevent deceit and fraud within the adoption process.
The rigorous financial oversight, backed by criminal statutes, is the primary legal tool used to prevent any transaction from resembling a commercial exchange, thereby safeguarding the child's status and ensuring the decision to place a child for adoption is made freely and voluntarily.
Case Law Guidance: The court has the responsibility to scrutinize the accounting report to ensure expenses adhere to the "reasonable and necessary" standard. Payments for items deemed excessive (e.g., luxury travel, high-end housing) may be rejected by the court as violating the spirit of the law.
IV. Adult Adoption
Creation and Effect of the Legal Relationship
Governing Law: Adult adoption proceedings are governed by Fam. Code §§ 9300-9340. This division also covers the adoption of an unmarried minor who is married to the adopting person (Fam. Code § 9301).
Establishment of Status: Upon the court granting the Order of Adoption, the adopted person and the adopting person assume toward each other the legal relation of parent and child, with all the rights and responsibilities of that relationship (Fam. Code § 9305). This relationship is equivalent to that created by birth.
Inheritance Rights: The adoption order explicitly includes the right of inheritance (Fam. Code §9305).
Severance of Prior Rights: Except when the adopting person is a stepparent (Fam. Code §9306), the adoption severs all legal rights and duties between the adopted person and their former natural parents (Fam. Code § 9305). The natural parents are no longer deemed to be the parents of the adopted perso
Procedural and Consent Requirements
Formal Agreement and Petition: The parties must execute a signed Agreement of Adoption, which states their consent to assume the legal parent-child relationship (Fam. Code § 9320). They then file a Petition for Approval of Adoption Agreement.
Court Hearing and Appearance: The court must hold a hearing, and both the adopted person and the adopting person must appear in court (Fam. Code § 9321). Failure of either party to appear invalidates the agreement and prevents the issuance of the adoption order.
Judicial Standard: The court must be satisfied that the adoption will be in the best interest of the parties and is otherwise proper (Fam. Code § 9328). This standard, while similar to the "best interest" standard in minor adoptions, focuses on the welfare of the involved adults rather than primarily the child's health, safety, and general welfare.
Spousal Consent: If either party is married, the written consent of the spouse is generally required (Fam. Code §§ 9322, 9323), unless the spouse cannot be located after diligent search or lacks the capacity to consent.
Special Protections and Finality
Developmentally Disabled Adoptees: For the adoption of a developmentally disabled adult, the petitioner must give at least 30 days' notice of the hearing to the director of the regional center. The director is then required to file a report with the court regarding the suitability of the adoption (Fam. Code § 9327).
Finality of Decree: An order of adult adoption is generally considered conclusive and binding upon the parties and is not subject to set aside, change, or modification after the time for appeal has expired (Fam. Code § 9340).
Exception: The ruling in In re Adoption of M. (1999) 55 Cal.App.4th 263, affirmed the finality of the decree while demonstrating a narrow exception. The court found that vacating the adult adoption was necessary due to "truly exceptional circumstances" and to serve the parties' best interests by removing the legal bar (incest) preventing the adult adoptee and her adoptive father (now also the biological father of her son) from marrying and legitimizing their child. The case underscored that such a drastic action requires a compelling showing that the adoption serves an unlawful or otherwise highly detrimental end in its current state.