A. Adoption

Adoption is a court procedure by which an adult legally becomes the parent of someone who is not that person’s biological child. Adopting parents assume legal responsibility for the child—including the duty to provide support—and the child inherits from the adoptive parents as if they were birth parents. The birth parents’ legal relationship to the child is terminated unless there is a legal contract allowing them to retain or share some rights (as in a stepparent or domestic partner adoption).

Consent of the Birth Parents

The natural parents of a child who is the subject of an adoption proceeding each have the right to be notified of a proposed adoption and to object to it. Each parent’s rights depend on the degree to which that parent has been involved in raising and caring for the child.

A man is presumed to be a child’s natural father and is entitled to notice of adoption proceedings regarding the child if any of the following is true:

• He was married to the mother when the child was born or was married to the mother before the child’s birth and the child was born within 300 days of the end of the couple’s marriage by divorce, legal separation, annulment, or death.
• He attempted to marry the mother, but the marriage was not valid for some technical reason.
• He married the child’s mother after the child was born (even if the marriage was later annulled), and he was willingly named on the birth certificate as father, or he paid child support under a written promise or court order.
• While the child was a minor, he welcomed the child into his home and openly held the child out to be his natural child. (Fam. Code § 7611.)

A woman who gives birth does not need to take any special steps to be presumed the natural mother.

A natural (or presumed) parent must give consent before an adoption can take place, unless that person’s parental rights have been terminated for some reason, such as abandonment or unfitness. A parent’s rights can be terminated if the parent has willfully failed to communicate with or financially support the child for at least one year.

Types of Adoption

• Stepparent adoption occurs when a parent with custody of a child marries or registers with a domestic partner, and the new partner adopts the child. Consent of the child’s other parent may be necessary (see above). The natural parent and the new spouse or registered domestic partner must file a petition in superior court, after which a social worker will conduct an investigation and write a report for the judge. If the report is favorable, the judge is likely to grant the adoption.
• Domestic partner adoption is like a stepparent adoption in that the registered domestic partner of a legal or biological parent may adopt that parent’s child. Even though registered domestic partners can both be included in a child’s birth certificate if the child is born during the partnership, adoptions are still recommended. Domestic partner registration is available only to same-sex couples in California, so heterosexual partners must either marry to take advantage of stepparent adoption rules or complete a second parent adoption, described below.
• Second parent adoption is an independent adoption (see definition below) by an unmarried partner in a heterosexual or same-sex relationship, where the partner becomes a legal parent while the child’s parent retains parental rights (the same as in a stepparent or domestic partner adoption). Second parent adoption is an option for same-sex couples who aren’t eligible for domestic partner registration because they do not live together or are in the process of terminating a previous domestic partnership, for example, and for heterosexual couples who are parenting together but do not wish to marry.
• Agency adoption occurs when a licensed public or private adoption agency places a child in the home of adopting parents. The agency will make sure that the birth parents’ rights have been terminated before the placement. The adopting parents must file a petition, submit to an investigation by a social worker, and be approved by a judge.
    Adoption agencies are usually extremely selective because they have long waiting lists of prospective parents. Private agencies usually charge between $1,000 and $6,000 for placing young children and up to $30,000 for placing newborns.
• County adoption occurs when the county has custody of a child because the parents have abused, neglected, or abandoned the child or the child has been declared beyond the parents’ control. These children are usually placed in foster homes while efforts are made to reunite the family; typically, parents must agree to attend parenting classes or counseling and must meet other conditions imposed by the judge. If, after 18 months, the parents have not met the conditions for reunification, the judge terminates their parental rights and frees the child for adoption. These children are sometimes adopted by their foster parents.
• Independent adoption, also called private adoption, occurs when birth parents consent to place a child directly with the adoptive parents, without any agency participation. Although it is illegal in California for adoptive parents to advertise that they are looking for a baby to adopt (Fam. Code § 8609), few other state laws regulate independent adoption. In some counties—such as Los Angeles— local law requires that the birth mother and adoptive parents meet in person. The adoptive parents may pay the medical, legal, and other necessary living expenses of the mother. However, if the birth mother decides not to go through with the adoption, the adoptive parents are not entitled to get their money back.
    As in other kinds of adoption, in an independent adoption the adoptive parents must file a petition in superior court, be investigated by a county social worker, and be approved by a judge. The adoption becomes final about six months after the birth parents agree to give up their parental rights.
• Intercountry or international adoptions occur when parents adopt a child from outside the U.S. Adoptive parents may (and sometimes must, depending on the country) readopt the child in California. The advantage to doing so is that a new California birth certificate will be issued. (Fam. Code § 8904.) In 2007, the U.S. agreed to participate in the Hague Convention, an international treaty governing intentional adoptions. It’s unclear what all the consequences of this action will be, but it’s likely that international adoptions will become more difficult and the countries from which children are available will be more limited.
• Adult adoption. Adults can be adopted by other adults in certain circumstances. The adopting parent must be at least ten years older than the person being adopted, and the relationship cannot be a sexual one. Upon the adoption, the adoptee’s relationship with his or her birth parents is terminated, unless the adoption is by a stepparent who is married to the adoptee’s birth parent.

Age of Majority

Every state designates children as minors until they reach a certain age: the age of majority. In California, that age is 18. (Fam. Code § 6501.)

A minor may not give legally binding consent in many situations. (Fam. Code §§ 6700, 6701, 6920, 6921, 6925, 7050.) Specifically, a minor may not:

• enter into a contract relating to real estate or the sale of personal property not in the immediate possession of the minor
• buy or sell property, including real estate and stock
• get married without the written consent of parents or guardian and a judge
• sue or be sued in his or her own name (except in a personal injury lawsuit)
• compromise, settle, or arbitrate a claim
• make or revoke a will, or
• inherit property outright—it must be supervised by an adult.

However, a minor in California may:

• donate blood if the minor is at least 17 years old, or is at least 15 years old and has the written consent of parents or guardian and a doctor (H & S Code § 1607.5.)
• consent to hospital, medical, or surgical care if he or she is legally married or on active duty in the armed services (Fam. Code §§ 7002, 7050.)
• consent to mental health treatment or counseling on an outpatient basis or participate in a decision to consent to residential shelter services if the minor is at least 12 years old, is determined to be sufficiently mature to consent to residential shelter services, or is otherwise emancipated. (Fam. Code §§ 6920, 6921, 6924.)
• consent to pregnancy treatment, treatment for a communicable disease, treatment after a sexual assault, and drug or alcohol treatment. (Fam. Code §§ 6925, 6926, 6927, 6929.)

Birth Certificates

A birth certificate is a document that officially records the birth of a child. Birth certificates give the child’s name and sex, the names of the child’s parents, and when and where the birth took place. Birth certificates are usually completed by hospital personnel or the person delivering the baby, such as a midwife.

How to Get a Copy of a Birth Certificate

To obtain a certified copy of a birth certificate from the Office of Vital Records, mail your request to the California Department of Health Services, Office of Vital Records, M.S. 5103, P.O. Box 997410, Sacramento, CA 95899-7410. You can check procedures for obtaining records at the Office of Vital Records website at www.dhs.ca.gov/hisp/chs/OVR/ordercert.htm. You can get copies more quickly by going to the county recorder in the county where the birth took place or, if the birth was within the last two years, to the county health department in that county. Another good resource for getting a birth certificate or other similar documents, especially if the birth was outside of California, is www.vitalcheck.com.

Unmarried Parents

If the parents of a child are not legally married, the father’s name will not be added to the birth certificate unless he:

• signs a voluntary Declaration of Paternity in the hospital, or
• signs the form later or legally establishes paternity and pays to amend the birth certificate. (H & S Code § 102425.)

Amendments to a Birth Certificate

Birth certificates may be amended in certain situations. The amendment is attached to the birth certificate and becomes an official part of the birth record. Amendments are allowed only in order to:

• Reflect a court-ordered name change and/or gender change. If you obtained a name change from any court in the United States or territory, you may add this name to your birth certificate. (H & S Code § 103400.)
• Add a parent’s new name to a child’s birth certificate. If a parent’s name is changed by usage or court order, an attachment may be added showing the parent’s new name. The attachment indicates that the parent is "AKA" (also known as) and gives the new name.
• Add the father’s name to the birth certificate. For unmarried parents, the father’s name may be added to the birth certificate after the father signs a voluntary Declaration of Paternity or paternity is otherwise legally established. (H & S Code § 102766.)
• Correct minor typographical errors or omissions on the original birth certificate. Minor errors or missing information may be corrected by amendment. There is no charge for correcting errors to a birth certificate if the change is made within one year of a child’s birth. (H & S Code §§ 103225–103255.)

If the incorrect sex is listed and the birth was recent, a hospital official should complete an affidavit (sworn statement) indicating the error. This affidavit should be sent with the application to amend.

If the wrong father was listed on the birth certificate, an attachment cannot be used to correct either the certificate or the child’s last name, regardless of the explanation. In that case you’ll need a judicial decree of paternity, discussed below.

How to Get a New Birth Certificate

When a new birth certificate is issued, the old one is sealed, and no one can look at it without a special court order. A new California birth certificate is issued only in these circumstances:

• Acknowledgment of paternity. If a birth certificate omits a child’s father, or the father is listed but the child’s last name is different from the father’s, a new birth certificate is available. (H & S Code §§ 102750–102765.) The mother and father acknowledging paternity both must sign statements under penalty of perjury confirming that they are the natural parents and requesting changes to the birth certificate. The child’s name may also be changed to reflect the father’s last name.
• Judicial decree of paternity (court order required). If a court in the United States finds that a man is the father of a child and issues an order stating this fact—often referred to as a "judicial decree of paternity" or "adjudication of paternity"—a new birth certificate may be issued. Information about the father may be included on the birth certificate, and the child’s last name may be changed to that of the father. (H & S Code §§ 102725–102735.)
• Adoption (court order required). A new birth certificate may be issued for an adopted child in the name of the new parents (including same-sex adoptive parents). (H & S Code § 102635.) The court clerk (or agency, if the adoption was outside of California) must send notice of the adoption to the Office of Vital Records within five days after the adoption is finalized. (H & S Code § 102625.)
• Sex change operation (court order required). People born in California who have undergone a surgical sex change operation may obtain a new birth certificate reflecting their new name and sex. They must first go to court and obtain an order that affirms both the sex change and the new name. (H & S Code §§ 103425–103445.)
• Offensive racial description. Upon request, a new birth certificate will be issued if the original contains a derogatory, demeaning, or colloquial racial description and the person prefers a different racial description. (H & S Code §§ 103260, 103350–103375.)

Breastfeeding

A mother may breastfeed her child in any location, public or private, where the mother and child are otherwise authorized to be present, except in the private home or residence of another who objects. (Civ. Code § 43.3.)

Child Abuse and Neglect

Child abuse is any physical injury or mental suffering inflicted on a child by other than accidental means. Child abuse may be sexual in nature: touching a child’s genitals or other private parts for sexual gratification, masturbating in front of a child, or filming or photographing a child participating in actual or simulated sex acts. Child abuse is a felony punishable by up to six years in state prison for a first offense. (Pen. Code §§ 273a, 11165.1, 11165.6.)

Child neglect is the mistreatment or negligent (unreasonably careless) treatment of a child by a person responsible for the child’s welfare, in circumstances that threaten or cause harm to the child. Failure to provide necessary food, clothing, shelter, supervision, or medical care (except in the case of treatment by spiritual means) all constitute neglect. Neglect is a misdemeanor, punishable by up to one year in the county jail, a fine of up to $2,000, or both. (Pen. Code §§ 270, 11165.2.)

When a report of suspected child abuse or neglect is made, Child Protective Services (a branch of the California Department of Social Services) must immediately assess the child’s safety. A child in serious danger will be removed from the home at once. Then a case plan will be developed, with the ultimate goal of safely reuniting the child with his or her family. In some cases, the state may require counseling or parenting classes. If the child cannot return home safely, the child will stay in foster care and eventually be freed for adoption. (Welf. & Inst. Code §§ 16500 and following.)

Reporting Requirements

Teachers, administrators, camp counselors, clergy members (priests, ministers, rabbis), foster parents, and others whose job responsibilities include direct supervision of children have a legal duty to report suspected child abuse or neglect to a police or sheriff’s department, a county probation department, or a county welfare department. These people must report their suspicions immediately by phone and submit a written report within 36 hours. Similarly, any commercial film or photographic print processor who sees a depiction of a child under 16 engaged in sexual acts must telephone and submit a written report, including a copy of the material in question, to the local law enforcement agency within 36 hours. (Pen. Code § 11166.)

If, upon further investigation, it appears that the person making the child abuse report was mistaken, that person cannot be held liable for the mistake as long as it was honest; this encourages reporting. However, someone who makes what the person knows or should know to be a false report of child abuse is liable for any damages caused by that report. (Pen. Code § 11172.)

Lawsuits for Sexual Abuse

Some people who suffered sexual abuse as children don’t remember the abuse until much later in their lives. When these memories surface, some want to sue their abusers. Formerly, these lawsuits were barred by statutes of limitation, which prevent personal injury suits that aren’t brought within a certain time following the injury. However, in California, lawsuits based on sexual abuse suffered as a child can be brought until the person reaches age 26, or until three years have passed since the person discovered or reasonably should have discovered that their injuries were related to childhood sexual abuse. If suit is brought after the person turns 26, the victim’s attorney and a licensed medical health practitioner must file statements with the court asserting that they believe the lawsuit has merit. (Code of Civ. Proc. § 340.1.) Some other rules may apply in specific circumstances, so look carefully at the statute and consult a lawyer if you have any questions about these time limits.

Next: B. Child Support

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