Adoption: Consent of Birth Parents and Notice to Birth Father

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Article2019 | 07 | 05

Adoption: Consent of Birth Parents and Notice to Birth Father


Notice to Birth Father

A form called Notice to Birth Father is required to be served on birth fathers in certain adoptions. This applies to private adoptions, de facto adoptions, extended family adoptions, and step-parent adoptions. However, the Notice to Birth Father does not to be served if the birth father is signing consent.

The Notice to Birth Father is a prescribed form that provides important information to the birth father about the adoption.

A Notice to Birth Father needs to be served on the Birth Father before the Birth Mother can sign consent to the adoption, and is normally signed before the birth of the baby if the baby is not born yet.

If the Birth Father cannot be located or is unknown you will need a lawyer to get a Court Order dispensing with the requirement to have the Notice to Birth Father served. In consideration by a Judge in making such an Order the Judge is to consider whether it is in the child’s best interests to do so; or the Birth Father cannot be located after reasonable efforts have been made to find.

Serving the Notice of Application of Adoption

A request for an Adoption Order to a Court is initiated by filing a court form called a Notice of Application for Adoption. This Court form often needs to be served on birth parents, and needs to be served on any birth parent whose consent is required for the adoption.

A Notice of Application has to be served personally. Service is normally completed by a process server, or in the case of a private adoption is usually completed by Adoption Options.

Dispensing with service of Notice of Birth Father and/or Notice of Application and Substitutional Service

It is possible to obtain a Court Order waiving the requirement to serve the Notice to Birth Father or Notice of Application for the Adoption. This is often necessary where a birth parent cannot be located, is unknown or is evading service.

The Court has the ability to dispense with service if the individual has not in any way been involved in a parental relationship with the child, or cannot be located after reasonable efforts have been made.

Often the Court instead of dispensing with the requirement for service, will make an Order for substitutional service. This means they can direct that the document be served by another manner rather than personal service, such as mailing to the last known address of the individual, or sending it by email, Facebook or serving a family member.

A court appearance is necessary to obtain Court Order’s dispensing with service or for substitutional service. Affidavits will need to be prepared to outline the attempts to serve the Birth Parent or why they cannot be located.

Consent of Birth Parent

It is usually preferable to have both the Birth Mother and Birth Father sign consent if they are willing.

If the category of adoption requires consent of Birth Parents, it is important to consider whether the birth father’s consent is necessary. If the Birth Father is not married to the Birth Mother and has never cohabited with her, or did cohabit with her but has been separated for more than 300 days, the consent of the Birth Father may not be necessary.

A Consent of a Birth Parent is a prescribed form, and it is important for the birth parent to have advice from a lawyer before signing the Consent.

A Judge has the ability to dispense with Consent of a Birth Parent if there are valid reasons to do so including if the person:

  • has abandoned or deserted the child;
  • cannot be located after reasonable attempts have been made to find the person;
  • is incapable of caring for the child and has been so for a period of time of sufficient duration to be detrimental to the best interests of the child
  • while liable to maintain the child, has persistently neglected or refused to do so; or
  • has not had an ongoing parental relationship with the child and a delay in securing a home for the child would be detrimental to the best interests of the child

A Judge also has the ability to dispense with consent of a child 12 of years of age or older if the child is unable to understand or give consent.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly.

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About the Author
Robynne Kazina
Robynne B. Kazina