Fla. Stat. § 63.062 : Civil Practice And Procedure — Adoption — Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue

Current through Chapter 269 of the 2016 Legislative Session

(1) Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:

(a) The mother of the minor.

(b) The father of the minor, if:

1. The minor was conceived or born while the father was married to the mother;

2. The minor is his child by adoption;

3. The minor has been adjudicated by the court to be his child before the date a petition for termination of parental rights is filed;

4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c) or he is listed on the child's birth certificate before the date a petition for termination of parental rights is filed; or

5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).

The status of the father shall be determined at the time of the filing of the petition to terminate parental rights and may not be modified, except as otherwise provided in s. 63.0423(9)(a), for purposes of his obligations and rights under this chapter by acts occurring after the filing of the petition to terminate parental rights.

(c) The minor, if 12 years of age or older, unless the court in the best interest of the minor dispenses with the minor's consent.

(d) Any person lawfully entitled to custody of the minor if required by the court.

(e) The court having jurisdiction to determine custody of the minor, if the person having physical custody of the minor does not have authority to consent to the adoption.

(2) In accordance with subsection (1), the consent of an unmarried biological father shall be necessary only if the unmarried biological father has complied with the requirements of this subsection.

(a)

1. With regard to a child who is placed with adoptive parents more than 6 months after the child's birth, an unmarried biological father must 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 providing reasonable and regular financial support to the child in accordance with the unmarried biological father's ability, if not prevented from doing so by the person or authorized agency having lawful custody of the child, and either:

a. Regularly visited the child at least monthly, when physically and financially able to do so and when not prevented from doing so by the birth mother or the person or authorized agency having lawful custody of the child; or

b. Maintained regular communication with the child or with the person or agency having the care or custody of the child, when physically or financially unable to visit the child or when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.

2. An unmarried biological father who openly lived with the child for at least 6 months within the 1-year period following 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 the requirements of this paragraph.

(b) With regard to a child who is 6 months of age or younger at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:

1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.

2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother's pregnancy and the child's birth in accordance with his ability to pay.

3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the living and medical expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child. The responsibility of the unmarried biological father to provide financial assistance to the birth mother during her pregnancy and to the child after birth is not abated because support is being provided to the birth mother or child by the adoption entity, a prospective adoptive parent, or a third party, nor does it serve as a basis to excuse the birth father's failure to provide support.

(c) The mere fact that a father expresses a desire to fulfill his responsibilities towards his child which is unsupported by acts evidencing this intent does not meet the requirements of this section.

(d) The petitioner shall file with the court a certificate from the Office of Vital Statistics stating that a diligent search has been made of the Florida Putative Father Registry of notices from unmarried biological fathers described in subparagraph (b)1. and that no filing has been found pertaining to the father of the child in question 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 entry of a final judgment of termination of parental rights.

(e) An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.

(3) Pursuant to chapter 48, an adoption entity shall serve a notice of intended adoption plan upon any known and locatable unmarried biological father who is identified to the adoption entity by the mother by the date she signs her consent for adoption if the child is 6 months of age or less at the time the consent is executed. Service of the notice of intended adoption plan is not required when the unmarried biological father signs a consent for adoption or an affidavit of nonpaternity or when the child is more than 6 months of age at the time of the execution of the consent by the mother. The notice may be served at any time before the child's birth or before placing the child in the adoptive home. The recipient of the notice may waive service of process by executing a waiver and acknowledging receipt of the plan. The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan he must, within 30 days after service, file with the court a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2. and a claim of paternity form with the Office of Vital Statistics, and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics. The notice must also include instructions for submitting a claim of paternity form to the Office of Vital Statistics and the address to which the claim must be sent. If the party served with the notice of intended adoption plan is an entity whose consent is required, the notice must specifically state that the entity must file, within 30 days after service, a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interests of the child.

(a) If the unmarried biological father or entity whose consent is required fails to timely and properly file a verified response with the court and, in the case of an unmarried biological father, a claim of paternity form with the Office of Vital Statistics, the court shall enter a default judgment against the unmarried biological father or entity and the consent of that unmarried biological father or entity shall no longer be required under this chapter and shall be deemed to have waived any claim of rights to the child. To avoid an entry of a default judgment, within 30 days after receipt of service of the notice of intended adoption plan:

1. The unmarried biological father must:

a. File a claim of paternity with the Florida Putative Father Registry maintained by the Office of Vital Statistics;

b. File a verified response with the court which contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2.; and

c. Provide support for the birth mother and the child.

2. The entity whose consent is required must file a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interests of the child.

(b) If the mother identifies a potential unmarried biological father within the timeframes required by the statute, whose location is unknown, the adoption entity shall conduct a diligent search pursuant to s. 63.088. If, upon completion of a diligent search, the potential unmarried biological father's location remains unknown and a search of the Florida Putative Father Registry fails to reveal a match, the adoption entity shall request in the petition for termination of parental rights pending adoption that the court declare the diligent search to be in compliance with s. 63.088, that the adoption entity has no further obligation to provide notice to the potential unmarried biological father, and that the potential unmarried biological father's consent to the adoption is not required.

(4) Any person whose consent is required under paragraph (1)(b), or any other man, may execute an irrevocable affidavit of nonpaternity in lieu of a consent under this section and by doing so waives notice to all court proceedings after the date of execution. An affidavit of nonpaternity must be executed as provided in s. 63.082. The affidavit of nonpaternity may be executed prior to the birth of the child. The person executing the affidavit must receive disclosure under s. 63.085 prior to signing the affidavit. For purposes of this chapter, an affidavit of nonpaternity is sufficient if it contains a specific denial of parental obligations and does not need to deny the existence of a biological relationship.

(5) A person who signs a consent to adoption or an affidavit of nonpaternity must be given reasonable notice of his or her right to select a person who does not have an employment, professional, or personal relationship with the adoption entity or the prospective adoptive parents to be present when the consent to adoption or affidavit of nonpaternity is executed and to sign the consent or affidavit as a witness.

(6) The petitioner must make good faith and diligent efforts as provided under s. 63.088 to notify, and obtain written consent from, the persons required to consent to adoption under this section.

(7) If parental rights to the minor have previously been terminated, the adoption entity with which the minor has been placed for subsequent adoption may provide consent to the adoption. In such case, no other consent is required. The consent of the department shall be waived upon a determination by the court that such consent is being unreasonably withheld and if the petitioner has filed with the court a favorable preliminary adoptive home study as required under s. 63.092.

(8) A petition to adopt an adult may be granted if:

(a) Written consent to adoption has been executed by the adult and the adult's spouse, if any, unless the spouse's consent is waived by the court for good cause.

(b) Written notice of the final hearing on the adoption has been provided to the parents, if any, or proof of service of process has been filed, showing notice has been served on the parents as provided in this chapter.

(9) A petition for termination of parental rights must be filed in the appropriate county as determined under s. 63.087(2). If a parent whose consent is required objects to venue in the county where the action was filed, the court may transfer venue to a proper venue consistent with this chapter and chapter 47 unless the objecting parent has previously executed a waiver of venue.

(10) The waiver of venue must be a separate document containing no consents, disclosures, or other information unrelated to venue.

Fla. Stat. § 63.062

s. 6, ch. 73-159; s. 4, ch. 75-226; s. 16, ch. 77-147; s. 1, ch. 77-446; s. 6, ch. 92-96; s. 11, ch. 95-280; s.84, ch. 97-237; s.13, ch. 2001-3; s.12, ch. 2003-58; s.2, ch. 2004-389; s.3, ch. 2006-265; s.8, ch. 2008-151; s.11, ch. 2012-81.