What is a Voluntary Relinquishment Affidavit?
An affidavit of voluntary relinquishment is an official document that a parent (or parents) files with the court to formally give up their legal rights to a child. The affidavit is used only in adoption cases where the child being given up for adoption is the birth child of one of the individuals listed on the affidavit. The form is not an appropriate document to use if a child is not biologically or legally related to an individual listed on the form.
The purpose of the voluntary relinquishment is to allow a parent to consent to give up their rights for the child. This document is then presented to the court prior to the consent hearing so the judge may sign the document to show that they have read and understood it prior to the consent hearing. The relinquishment of rights is a highly important step in the adoption process, and it is essential for both parties to follow all necessary requirements to ensure that the process goes smoothly.
Once a voluntary relinquishment of parental rights has been accepted and the child is available for adoption, this document permanently transfers parental rights to the individual obtaining adoption of the child . It is important to understand that this is a permanent transfer of rights, meaning the parent relinquishing their rights can no longer make claims as the individual’s parent.
From a parent’s perspective, the legal implications of a voluntary relinquishment of parental rights are likely to be positive. In most situations, terminating parental rights means that the parent will no longer be responsible for paying child support or other fees associated with the child. This can be a great relief for many parents who may find certain aspects of parenting extremely difficult or challenging. In addition, a parent relinquishing their parental rights will no longer have any visitation or custody rights with the child.
A voluntary relinquishment of parental rights has clear legal implications for the individual relinquishing their parental rights and also for the legal system. This document is a vital component of the adoption process, and it is important for parents who are considering adoption to understand the process.
Voluntary Relinquishment Process in Law
To voluntarily execute an Affidavit of Voluntary Relinquishment of Parental Rights a person must be of the following:
(a) the relinquishing parent must demonstrate, to the satisfaction of the court, the existence of the following conditions.
- the relinquishing parent is the biological or legal father or mother of a child;
- the relinquishing parent is the sole parent with legal custody of the child and the other biological or legal parent is either dead or the parental rights have been terminated by a court of competent jurisdiction in a separate judicial proceeding, or has no parental rights;
- the relinquishing parent voluntarily, knowingly, and intelligently waives all parental rights to the child;
- the relinquishing parent is informed that the relinquishment is irrevocable and that neither the relinquishing parent, nor any court or agency without referral to the adoption registry or disclosure registry, may reclaim the relinquishment at any time;
- the relinquishing parent is informed that he or she may advise the court of his or her wishes as to the religious and cultural background of the child or other relevant matters, but is not obligated to do so;
- the relinquishing parent is informed that the relinquishment does not terminate the parental rights of the relinquishing parent’s spouse, if any, to the child, if the relinquishing parent has a spouse; and
- the relinquishing parent is informed that the relinquishment does not constitute a complete agreement for the adoption of the child.
(b) the relinquishing parent must participate in the assessment and evaluation study as required by Section 42-1-108 by completing the relinquishment form prescribed by the department in accordance with the rules adopted by the State Board of Social Services. The relinquishment form must be completed under the supervision of a department approved adoption intermediary upon referral from the department to an adoption intermediary, or the relinquishing parent may appear directly before the Department of Human Services. The relinquishing parent must read or have read to him or her the relinquishment form and must sign the form before an official identified by the regulations of the State Board of Social Services.
(c) Following the relinquishment the giving up of parental rights in accordance with Section 43-21-311, the department must give a copy of the relinquishment to the relinquishing parent and to the receiving adoption agency.
Therefore, as a condition precedent to an abandonment proceeding, an Affidavit of Voluntary Relinquishment of Parental Rights is a prerequisite in Tennessee for voluntary relinquishments to be valid.
Causes for Using Voluntary Relinquishment
There are several common reasons why a parent may choose to voluntarily sign an affidavit of voluntary relinquishment of parental rights. The most common reason is usually concerns about the ability to adequately support a child and a perceived inability to be a financially responsible parent to that child. Perhaps a parent has lost their job, their salary has been reduced or they have recurring medical bills or other debt and are uncertain how they will support a child. They would then feel it to be in the child’s best interest for someone else to become the child’s legal parents, rather than remaining the child’s legal parents and being found not to have adequate means to care for the child.
Another reason a parent may choose to relinquish their parental rights is that they may generate significant hostility in the home or between other parents within the family if they are not a legal parent. There may be significant family dynamics that make an otherwise faithful and responsible parent feel as if they must relinquish their parental rights in order to allow the other parent to establish their own family, especially in the context of a blended family.
Other reasons can relate to the parent’s association with someone the other parent may not want their child around. If that parent is involved with a person that the other parent is not comfortable with that person caring for their child, that parent may not wish to relinquish their rights, but they may feel that is their only option because they cannot be comfortable with their child being cared for by that person without custody actually being changed to another parent.
A related issue can happen when there is domestic violence issues among the parents and they share a child together. A parent may feel the only way to break free from the other parent and ensure their own safety and the safety of the child is to relinquish their parental rights to the child.
What’s Required and Who Qualifies
A parent’s ability to file an affidavit of voluntary relinquishment of parental rights is subject to certain eligibility requirements. Unless a parent meets the requirements set forth in the Family Code, the affidavit will not be effective. The requirements for a parent filing an affidavit of voluntary relinquishment of parental right to be effective are as follows:
- A parent must have the legal right to care, control and custody of the child.
- A parent filing an affidavit of voluntary relinquishment of parental rights must have the mental capacity to give consent to the relinquishment. A parent’s capacity may be challenged by the other parent or a guardian ad litem. If such a challenge is made, the burden of establishing the parent’s mental capacity will be on the parent filing the affidavit. A court will review the challenging parent’s motion for a hearing, and rule on the necessity of such a hearing.
- A parent must be age 18 or older. If a parent is 17 years old at the time of filing, the affidavit may still be effective if it is signed in the presence of a judge. It must be emphasized, however, that the judge must be willing to sign the affidavit and make the effective. At least one judge in Harris County refuses to sign the separation and does not find it effective.
- A parent cannot be under a final protective order, pre-trial protective order of a magistrate or a magistrate’s order for emergency protection on the day that he or she files the affidavit of voluntary relinquishment of parental rights.
Impact on Parents and Children
The emotional and legal implications of relinquishment can be profound on both the parents involved and the children who are placed in new homes. For a parent, the act of relinquishment can mean the loss of contact with a child in whom they have invested years of love and care. In some instances, this might be a willing choice by a parent who believes it is in the child’s best interests. However, even where the relinquishment is voluntary and consented to, it can still be an emotionally rough road to travel for the parent forced to say goodbye to their child.
A parent who relinquishes rights is obliged to go through a court process that provides an opportunity to revisit the issue and change the decision, if the parent wishes, before relinquishment becomes final. The Florida court must conduct a judicial hearing to determine whether the relinquishment is in the children’s best interests. If the court finds this to be the case, parental rights are then formally terminated.
For a child, relinquishment may bring the promise of a better life in an adoptive home, but also a sense of loss and grief about being unable to remain with the people he or she has known as parents. Children may feel the sting of rejection long after the formal relinquishment , especially if they are able to maintain contact with the birth parent. Some parents and children may find relief in sharing their ongoing feelings and working through the pain together after relinquishment, but many children are left feeling abandoned and separated from their history.
Relinquishment is designed to provide the child with permanence as soon as possible, but it can have a lasting impact. The loss of a parent and one’s history can be particularly difficult during adolescence when the child is already struggling to create his or her own identity. David Brodzinsky, a child psychologist and expert in adoption, finds that "adolescents demonstrate a much lower sense of familial integration with their biological families than do younger children." As a result, adolescent relinquishments can be more emotionally disruptive than those of younger children.
The decision whether or not to pursue relinquishment is a complex one requiring careful thought and consideration, but given the complexity, is often made in a "crisis" situation. In these circumstances, parents are often unaware of the significant and long-term effects of relinquishment on them as well as their children.
How to File the Form – Guide
When ready to give up their parental rights for adoption purposes, biological parents file an Affidavit of Voluntary Relinquishment of Parental Rights form. They complete the form before the Child Placement Agency or agency representative in a separate room, according to local procedures. The agency representative should go over the legal significance of the notice and answer all biological parent questions before completion. Parents then sign before an official such as a notary public. For pre-consent counseling done by a different agency than the one at which the parental rights form is completed, they must mail a copy to the child placing agency and obtain a return verifying that such a copy was received. This must be attached to the affidavit before it is filed. After signing the parental rights forms, the agency representative is responsible for filing it with the appropriate circuit court or equivalent for the county of the child’s home, who then places them in the proper registry. A social worker of the agency must sign the form as well, verifying its veracity and declaring a belief that it has been voluntary.
Processing time may be anywhere from 2 weeks to 3 months, sometimes more, but the affidavit form itself does not require extensive data. It gathers general identification information on the biological parents and the child to be adopted and some information about the ground for relinquishment. Every state has its own affidavit form, specifying the data it considers necessary.
Action and Legal Support
In considering the filing of an Affidavit of Voluntary Relinquishment of Parental Rights Form, it is important to secure the advice of a lawyer before signing such a document. After all, signing such a document is the same as signing up your child to be eligible for adoption. You will literally be agreeing to give up all of your rights and legal responsibilities as a parent, and giving up your child for adoption.
There are additional important considerations to make BEFORE deciding to execute a Voluntary Relinquishment and giving up your rights to your child. For instance, you should consider whether there is anything else you can do other than relinquishing your parental rights to your child in order to get him or her the help that he or she needs. Here are some examples. Does your child have a disability? If so, would he or she qualify for benefits through SSI that could make it possible for him or her remain with you? Would your child be eligible for special education services through the local school district that might help provide him or her with the educational support needed?
In addition, relinquishment means NEVER seeing your child again, and losing the medical history that is so important to you to pass on to your child one day. While it is overwhelming at this point in time to think about it, there is the possibility of life ahead where you and your child can reunite. Life circumstances change, people change, and something that seems impossible today might be very possible in the future. Giving up your rights to your child is life transforming, and parental relinquishment should never be undertaken lightly.
Before signing this form, you are also agreeing to give up your financial responsibility to pay child support. Think carefully about whether you wish to give this up. If ever in the future you won a power ball lottery and had millions of dollars , your ability to begin paying a parent support obligation in the future would be restricted. Some parents are indeed able to pay child support into the future after a child has been adopted. But this right to child support is never guaranteed. Once the form is executed, it will be difficult to reverse your decision.
Finally, one of the most important things I wish to bring to your attention has to do with the Consent for Post-Adoption Contact that also appears on the Affidavit of Voluntary Relinquishment of Parental Rights Form. Once the form is signed, you will go through a termination of parental rights hearing in court and the court will terminate your parental rights. After that hearing, you will have officially given up your rights to your child, and the intermediary agency or attorney who is involved in the adoption of the child on your behalf will proceed to have the child placed into his or her new home. The adoption process generally takes from two to six months to complete.
If you sign the Post-Adoption Contact form, you will receive a copy of that form in the mail within thirty (30) days from the time the adoption is finalized. It is important to participate in verifying that the contact has occurred as outlined in the form, as any failure to do so could result in the agency reporting to the court that you have violated the conditions of your agreement. If you wish to maintain contact with your child, sign the form and make sure that you receive verification from the agency that the contact is occurring. Any disputes over the Post-Adoption Contact form can be raised directly with the Court of Common Pleas, in the same case where your rights to the child have been terminated.