Georgia’s New Adoption Code

by James B. Outman and Justin Y. Hester

Georgia’s Adoption Code, O.C.G.A. § 19-8-1 et. seq., was re-codified in 1990. From 1990 to 2013 the Adoption Code was amended 28 times, the most recent being in 2013 when new Code Section 19-8-27 was added. Each of those amendments was designed only to add something new or to clarify an existing provision, but over time the amendments themselves introduced inconsistencies in wording into the Adoption Code that needed to be corrected. In addition, other changes were needed to keep Georgia law in harmony with changes in practice in other states and to reflect changes in Federal law related to international adoption and immigration.

Role of GCAL

Beginning in 2015 the Georgia Council of Adoption Lawyers (GCAL) undertook the effort to update Georgia’s Adoption Code that resulted in the enactment of HB 159 as 2018 Ga. Laws Act 285, and it became effective September 1, 2018.

Section-by-Section Summary of Changes –

19-8-1 – Definitions

  • Four new definitions

19-8-2 – Venue

  • If filed within the first year of the child’s life, petition for adoption may now be filed in the Superior Court of the county in which the child was
  • In the adoption of a child from DFCS it is now permissible to file a petition in the county in which DFCS has legal
  • In the case of an interstate placement of a Georgia-born child that complies with the Interstate Compact on the Placement of Children (ICPC), the petition may be filed in the Superior Court of either the county where: (i) the child was born, (ii) the Child-placing agency is located, or (iii) in Fulton

19-8-3 – Who May Adopt:

  • Georgia resident, the six-month residency requirement deleted.
  • If the child was born in Georgia and was placed with a non-Georgia resident pursuant to the ICPC then the non- Georgia resident may
  • Minimum age for a single petitioner reduced to 21 in relative
  • Minimum age difference between the petitioner and the child no longer applies in the case of stepparent and relative

19-8-4; 19-8-5; 19-8-6 and 19-8-7 – Changes Regarding the Surrender of Rights That Apply to All Types of Adoptions:

  • Surrender documents must be executed under oath in the presence of a Notary Public and an adult
  • Revocation period reduced from ten days to four
  • Individual signing surrender consents to jurisdiction of the Georgia courts and agrees to be bound by the final decree of adoption.
  • Rights of biological father who is not legal father terminated upon the entry of either an order terminating his rights or final decree of
  • Person signing surrender need not be a U.S. citizen or a resident of
  • A biological father who is not a legal father and a legal father has the option to complete an affidavit regarding Native American heritage and military

19-8-4 – Department, Child-placing Agency and Out-of- state Licensed Agency Placements:

  • Placement by out-of-state licensed now included under C.G.A. § 19-8-4.

19-8-5 – Third-party Domestic Adoptions:

  • Third-party financially responsible for the child on date the surrender is Notice to the Department in no longer required. The ground for the court to waive the 60-day filing requirement changed from “excusable neglect” to “good cause shown.”

19-8-6 – Stepparent adoptions:*

19-8-7 – Relative adoptions *

19-8-8 – Domestication of Foreign Adoptions and Adoptions Based Upon Foreign Guardianship

  • Procedure for domestication of a foreign decree of adoption completely revised.
  • It is now recognized that the petitioner has legally adopted the child in the foreign country and only needs to domesticate their foreign decree to have the benefit of an order from a Superior Court of this state and to obtain a Certificate of Foreign Birth from Georgia Vital Records.
  • Provision for the adoption based on legal guardianship in the foreign county.
  • Superior Court has authority to change the date of birth of child upon a showing by a preponderance of evidence of a more accurate date.

19-8-9 – Revocation of Surrender

  • Revocation period shortened from 10 days to four days.
  • Time to revoke for personal delivery of the notice of revocation expires at “5:00 PM eastern standard time or eastern daylight time on the last day.”
  • Certified mail no longer acceptable method for sending notice of revocation.
  • A mother who signs a surrender of rights in support of the adoption of her child is without authority to consent to the granting of a petition for legitimation filed pursuant to O.C.G.A. § 19-7-22 with regard to the same child. 19-8-10 – Involuntary Termination of Parental Rights
  • A surrender of rights is not a perquisite to the granting of a petition for adoption, and surrender documents do not have to be filed with the petition.
  • Standard of proof is “clear and convincing evidence” for subsections (a) and (b).
  • Best interest standard in subsection (a) has been repeated in subsection (b).
  • Certified mail may no longer be used to effect service upon a parent.
  • Order of publication not required and publication may be undertaken simultaneously with other efforts to effect service.
  • The parent whose parental rights are being involuntarily terminated is “not a party to the adoption and shall have no obligation to file an answer.” 19-8-11 – Petition to Terminate Parental Rights by Agency or When no Adoption is Pending in Georgia
  • Certified mail may no longer be used to effect service upon a parent.
  • Order of publication not required and publication may be undertaken simultaneously with other efforts to effect service. 19-8-12 – The Rights of the Biological Father who is Not a Legal Father
  • Biological father who is not a legal father is “entitled to notice of an adoption proceeding only as provided in this Code section.”
  • Certified mail may no longer be used to effect service of notice.
  • Order of publication not required and publication may be undertaken simultaneously with other efforts to effect service.
  • Venue for petition to terminate the rights of the biological father who is not a legal father clarified.
  • Where the identity of the biological father who is not a legal father is unknown and a certification from the putative father registry “stating that there is no registrant identified” then absent evidence to rebut statutory no further inquiry or notice shall be required and “the court shall enter an order terminating the rights of such unnamed biological father of the child.”
  • Any legitimation action must be filed as a separate civil action.
  • Guidance provided to Court regarding the abandonment of opportunity interest by a biological father who is not a legal father. 19-8-13 – Contents of the Petition for Adoption
  • The sex, place of birth and citizenship or immigration status of the child must be included in the petition.
  • If the child is not either a U.S. citizen or a lawful permanent resident of the U.S. on the date the petition is filed the petitioner is required to “explain how such child will be able to obtain lawful permanent resident status.”
  • Petitioner must disclose any other adoption proceeding that is pending and whether or not any other individual has or claims custody or visitation rights with the child.
  • Petitions pursuant to O.C.G.A. § 19-8-4 must include either copies of the written voluntary surrender and acknowledgement of surrender, or a certified copy of the order entered by a court of competent jurisdiction terminating the parental rights of the parent and committing the child to the department, child-placing agency, or out-of-state licensed agency be submitted in support of the petition.
  • Documents required for the domestication of a foreign decree of adoption pursuant to O.C.G.A. § 19-8-8(a) changed.
  • Petitions for adoption based upon a guardianship order or decree from a foreign government pursuant to O.C.G.A. § 19-8-8(b) require new documents.
  • The affidavit required by O.C.G.A. § 19-8-13(c) now requires additional disclosures for payments for counseling or legal services, and for reasonable expenses for the biological mother as now authorized.
  • Putative father registry certification required when mother identifies her husband as the biological father and he has surrendered his parental rights.
  • All filings are “deemed to be a filing under seal under subsection (d) of Code section 9-11-7.1” so it is not necessary to redact social security numbers, taxpayer identification numbers, financial account numbers, or dates of birth. 19-8-14 – Filings with the Court and Timing of hearings
  • No hearing shall occur sooner than 30 days following service is deemed to have been received pursuant to O.C.G.A. §§ 19-8-10 and -12, when applicable.
  • Clerk of the superior court shall provide the petitioner or petitioner’s counsel upon request with a copy of all pleadings filed and all orders entered. 19-8-15 – Objection by Blood Relatives and Family Members
  • Decision in Parker v. Stone, 306 Ga. App. 636 (2010) specifically overruled. 19-8-16 – Appointment of Agent to Conduct Investigation and Render Report to Court; Criminal History Report Requirement
  • Appointment of an agent to conduct an investigation and report under O.C.G.A. § 19-8-16(a) is in addition to the requirement of a preplacement home study.
  • In stepparent or relative adoptions pursuant to O.C.G.A. § 19-8-6 or § 19-8-7, if the Court appoints an agent, the investigation is not to include a home study.
  • Adoptions involving a child-placing agency also exempt from the appointment of an agent to conduct an investigation pursuant to O.C.G.A. § 19-8-16(a).
  • If criminal history report included in home study is within 12 months of the date the petition is filed it satisfies the requirements of O.C.G.A. § 19-8-16(d).
  • The agent appointed by the Court pursuant to O.C.G.A. § 19-8-16(a) is not authorized to have access to the criminal history report.
  • The Court “shall determine the acceptability of the petitioner’s criminal history.”
  • The Court must inform the petitioner or petitioner’s counsel at least five days prior to the final hearing “if the court will require additional evidence with respect to the petitioner’s criminal history or if the court is inclined to deny such petition because of such criminal history, and afford the petitioner or his or her attorney an opportunity to present evidence as to why the petitioner’s criminal history should not be grounds for denial of such petition.”
  • The petitioner has option to arrange for investigation and report if Court appoints agent who charges more than $250.

19-8-17 – Scope of the Investigation & Report*

19-8-18 – Final Hearing on Petition

  • Court may allow petitioner or any witness to appear via electronic means.
  • Court must be satisfied child not born in the United States will be able to obtain lawful permanent resident status before granting the adoption.
  • Court authorized to continue or discontinue any visitation order that was in place prior to the filing of the petition for adoption.
  • Court authorized to domesticate a foreign decree of adoption “upon the pleadings without a hearing.”
  • Court is authorized to grant adoption based upon a foreign guardianship.
  • Factors provided for Court to consider in exercising its discretion to determine whether the adoption is in the best interests of the child.
  • Surrenders executed in support of the denied adoption are “dissolved by operation of law and the individual’s rights” restored.
  • Exception created to requirement that actions for damages be filed within a certain time frame created in case of any action for fraud in obtaining a consent or surrender.
  • Clerk of the superior court authorized to issue certified copies of the final decree of adoption to the petitioner “at the time of the entry of the final decree without further order of the court and without cost.”

19-8-19 – Effect of Decree of Adoption*

19-8-20 – Certificate of Adoption*

19-8-21 – Adoption of Adult

  • Petition must state whether one or both parents of the adult to be adopted will be replaced, and “if only one parent is to be replaced the decree of adoption shall make clear which parent is to be replaced by adoption.”

19-8-22 – Validity of Orders from Other Courts and Administrative Proceedings

  • Changed to require that decrees or orders dealing with guardianships, as well as adoption, whether issued by courts or administrative bodies in other jurisdictions within or without the United States shall be recognized and given full faith and credit.

19-8-23 – Sealed Adoption Records; Access; Permissible Uses by the Department; and Adoption Reunion Registry

  • Petitions to examine adoption records are deemed to be filed under seal.
  • Requirement of “good cause” removed.
  • Minimum age lowered from 21 to 18.
  • The Adoption Reunion Registry now provides for the disclosure of “a detailed summary of all information the department or placement agency has concerning the adoptee’s birth, foster care, placement for adoption, and finalization of his or her adoption” to the individual seeking the information, in addition to the name and in some cases the address of the individual being sought.

19-8-24 – Unlawful Advertisement; Inducement; Prohibited Sale and Offer to Sell Child; Criminal Penalties

  • An adoptive parent who has a valid, approved preplacement home study may advertise, as may his or her State Bar of Georgia attorney.
  • Authorized payment by a child-placing agency or attorney of counseling and legal expenses for a biological parent.
  • Authorized “the payment or reimbursement of reasonable expenses for rent, utilities, food, maternity garments, and maternity accessories for the biological mother if paid from the trust account” of member in good standing with the State Bar of Georgia.
  • It is now a crime for an individual “to knowingly make false representations in order to obtain inducements,” “to knowingly accept expenses” from either a childplacing agency or a member of the State Bar of Georgia either “for the adoption of her child or unborn child if she knows or should have known that she is not pregnant or is not a legal mother,” “to knowingly accept expenses” from more than one adoption agency or attorney with respect to the same child without full disclosure to both, and “to knowingly make false representations in order to obtain” payment for expenses as authorized in the Code section.
  • Any child-placing agency or individual who is damaged by a violation of any provision in this Code section is authorized to file “a civil action to recover damages, treble damages, reasonable attorney’s fees, and expenses of litigation.”

19-8-25 – Transition

  • A surrender executed on or before Aug. 31, 2018 shall satisfy the surrender requirements for purposes of an adoption filed on or after Sep. 1, 2018.
  • For adoption proceedings pending on Aug., 2018 the prior law will apply.

19-8-26 – Forms

  • All forms that existed prior to the passage of HB 159 remain, however, every form was changed in some manner and prior forms should not be utilized.
  • Three new forms were added:

1. “NOTICE TO REVOKE SURRENDER OR RIGHTS/ FINAL RELEASE FOR ADOPTION” to be used to revoke a surrender;

2. “BIOLOGICAL MOTHER’S AFFIDAVIT IDENTIFYING BIOLOGICAL FATHER OF HER UNBORN CHILD” to satisfy the requirement in subparagraph (e)(3)(E) of O.C.G.A. §§ 19-8-4, 19-8-5 or 19-8-7; and

3. “AFFIDAVIT REGARDING NATIVE AMERICAN HERITAGE AND MILITARY SERVICE” for the legal father and the biological father to sign at the time he signs his written voluntary surrender of rights.

19-8-27 – Post Adoption Contact Agreements*

19-8-28 – Orphan Child

This new section clarifies where the child is an orphan, i.e., he or she has no living legal parent or guardian, the petitioner is not required to have a guardian appointed and “[s]uch child shall be adoptable without a surrender of rights.”

Conclusion

We hope this section-by-section summary is helpful to the bar in understanding the significant revisions that have been made to Georgia’s Adoption Code. We are very proud of the efforts of all involved in this much-needed update, and we truly believe the new Adoption Code will further promote, enhance, and streamline the adoption process in our state. For those interested in learning more about the new Adoption Code, the Institute for Continuing Legal Education in Georgia (ICLE) together with the Georgia Council of Adoption Lawyers (GCAL) sponsored a seminar that focused on the new Adoption Code and it was held on Aug. 24, 2018. The webcast of that seminar is available for viewing on the ICLEga.org website.

* Except as noted above, no substantive changes.

Avatar

Jim Outman graduated from Georgetown University Law Center in Washington D.C. in 1971. Jim has been the principal author of Georgia’s adoption laws since 1975, including H.B. 159. Jim has chaired the ICLEGA Adoption Law & Practice seminar since 1996, and he has presented on adoption law at both the ICJEGA Superior Court Judges and Law Clerks’ Seminars. Jim is an Adoption Fellow of the Academy of Adoption & Assisted Reproduction Attorneys, a founding Fellow of the Georgia Council of Adoption Lawyers, and he was honored as an "Angel in Adoption" by the Congressional Coalition on Adoption Institute in Washington D.C. in 2003.

Jim is currently of counsel with the law firm of Hester Outman LLC, where he specializes in adoption law, estate planning, and elder law. He can be reached at 404-317-3044 and jim@ hesteroutman.com.

Avatar

Justin Hester graduated from the University of Georgia School of Law in 2000. Justin is a regular presenter at the ICLEGA Adoption Law & Practice seminars. Justin is a founding Fellow and current President-Elect of the Georgia Council of Adoption Lawyers, and he was honored as an "Angel in Adoption" by the Congressional Coalition on Adoption Institute in Washington D.C. in 2017.
Justin is currently Managing Member of Hester Outman LLC, where he specializes in adoption and family law. He can be reached at 770-446-3645 and justin@hesteroutman.com.