2020 Georgia Code
Title 19 - Domestic Relations
Chapter 8 - Adoption
Article 1 - General Provisions
§ 19-8-3. Who May Adopt a Child; When Petition Must Be Filed in Names of Both Spouses

1. Any individual may petition to adopt a child if he or she:
   1. Is at least 25 years of age or is married and living with his or her spouse, or is at least 21 years of age and is a relative of the child;
   2. Is at least ten years older than the child, except such ten-year requirement shall not apply when the petitioner is a stepparent or relative and the petition is filed pursuant to Code Section 19-8-6 or 19-8-7;
   3. Is a bona fide resident of this state at the filing of the petition for adoption or is a bona fide resident of the receiving state when the adoptee was born in this state and was placed in compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children; and
   4. Is financially, physically, and mentally able to have permanent custody of the child.
2. If an individual seeking to adopt a child is married, the petition for adoption shall be filed in the name of both spouses; provided, however, that, when the child is or was the stepchild of the party seeking to adopt, such petition shall be filed by the stepparent alone.

(Code 1981, §19-8-3, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 2018, p. 19, § 1-1/HB 159.)

The 2018 amendment, effective September 1, 2018, in subsection (a), in the introductory language, substituted "individual" for "adult person" near the beginning and substituted "he or she" for "the person" near the end; in paragraph (a)(1), inserted "or her" in the middle and added ", or is at least 21 years of age and is a relative of the child" at the end; added the exception in paragraph (a)(2); rewrote paragraph (a)(3), which read: "Has been a bona fide resident of this state for at least six months immediately preceding the filing of the petition; and;" deleted former subsection (b), which read: "Any adult person, including but not limited to a foster parent, meeting the requirements of subsection (a) of this Code section shall be eligible to apply to the department or a child-placing agency for consideration as an adoption applicant in accordance with the policies of the department or the agency."; redesignated former subsection (c) as present subsection (b); and, in subsection (b), substituted "an individual" for "a person" near the beginning, substituted "petition for adoption shall" for "petition must" near the middle, and in the proviso, inserted "or was" and substituted "such petition" for "the petition".

- Foster Parents Bill of Rights, T. 49, C. 5, Art. 14.

- For note, "Surrogate Mother Agreements in Georgia: Conflict and Accord with Statutory and Case Law," see 4 Ga. St. U.L. Rev. 153 (1988). For comment discussing In re Adoption of "E," 59 N.J. 36, 279 A.2d 785 (1971), as to the constitutionality of state court's refusal to approve adoption of child solely because of adopting parent's lack of religious beliefs, see 6 Ga. L. Rev. 221 (1971). For comment on adoptions by homosexuals, see 55 Mercer L. Rev. 1415 (2004).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 74-402 and former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1, are included in the annotations for this Code section.

- Phrase bona fide resident, as used in O.C.G.A. § 19-8-3(a)(3), requires a showing of status as a state of Georgia domiciliary for at least six months immediately before the filing of the petition for adoption with domicile referring to a single fixed place of abode with the intention of remaining there indefinitely, or the single fixed place of abode where a person intends to return, even though the person may in fact be residing elsewhere. Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

Adoption laws of this state do not preclude adoption of child by the child's natural parents. McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967) (decided under former Code 1933, § 74-402).

- Although foster parents may have standing to bring adoption petition in sense that they are legally eligible to apply to agency, they have no standing to contest legal custodian's absolute discretion whether to give consent requisite to successful petition for adoption. Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977) (decided under former Code 1933, § 74-402).

- State statute or policy that every child having mixed black and white parentage cannot be adopted by a white family cannot be countenanced under United States Constitution. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir.), on rehearing, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978) (decided under former Code 1933, § 74-402).

- Petitioner, who had been the child's stepfather until he and the natural mother divorced, could petition to adopt the child without joining his current spouse. In re J.S.G., 233 Ga. App. 690, 505 S.E.2d 70 (1998) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Trial court abused the court's discretion by denying a foster parent's petition to adopt the parent's foster child on the ground that placing the child with the foster parent, who was not married to the individual with whom the foster parent lived, violated the state's public policy because all of the evidence showed that the adoption would be in the child's best interest, and the trial court failed to apply the law as written and determine whether it was in the child's best interest to allow the adoption; all of the witnesses, including the guardian ad litem the trial court appointed to represent the child's interests and the Department of Family and Children's Services adoption specialist, testified that the adoption was in the child's best interest and that to remove the child from the only family the child had ever known would be devastating to the child, and O.C.G.A. § 19-8-3 clearly did not prohibit the adoption because the General Assembly did not prohibit unmarried couples from adopting. In re Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).

Nonresidents cannot institute adoption proceedings in the courts of this state. H.C.S. v. Grebel, 253 Ga. 404, 321 S.E.2d 321 (1984) (decided under former O.C.G.A. § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1); In re Stroh, 240 Ga. App. 835, 523 S.E.2d 887 (1999);(decided under former O.C.G.A. § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Trial court erred by dismissing a couple's adoption petition upon finding that the couple were not residents of Georgia under the adoption statute, O.C.G.A. § 19-8-3(a)(3), based on moving out-of-state for one to attend a seminary and intending to move back after those studies were complete since the statute required only a showing of domiciliary for the six months preceding the petition, which the couple established. Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

- Superior court properly dismissed a grandmother's adoption petition on collateral estoppel grounds based on the juvenile court's previous order granting temporary custody to the maternal grandfather and grant of visitation rights to the grandmother; as a result, the superior court was not authorized to readjudicate the issue of permanent custody involving the child at issue. Smith v. Hutcheson, 283 Ga. App. 117, 640 S.E.2d 690 (2006).

Trial court erred in denying an aunt and uncle's petition to adopt their nephew under O.C.G.A. § 19-8-8, and should have applied O.C.G.A. § 19-8-7 as: (1) the former was not intended to be a general rule regarding the adoption of foreign children; (2) the aunt and uncle satisfied the jurisdictional and venue requirements of O.C.G.A. § 19-8-2 by filing the adoption petition in the superior court of their county of residence; and (3) as the child's aunt and uncle, they were relatives eligible to adopt under § 19-8-7(a). In re Adoption of D.J.F.M., 284 Ga. App. 420, 643 S.E.2d 879 (2007).

Cited in Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661 (1936); Jones v. Harrison, 210 Ga. 373, 80 S.E.2d 155 (1954); Young v. Foster, 148 Ga. App. 737, 252 S.E.2d 680 (1979); Roberts v. Muscogee County Dep't of Family & Children Servs., 150 Ga. App. 750, 258 S.E.2d 689 (1979); Moore v. Pope, 196 Ga. App. 475, 396 S.E.2d 243 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Adoption, § 15 et seq.

- 2 C.J.S., Adoption of Persons, §§ 15 et seq., 81, 82.

- Validity and effect of preadoption agreement derogating from the status or rights of an adopted child as fixed by statute, 9 A.L.R. 1627.

Requirements as to residence or domicil of adoptee or adoptive parent for purposes of adoption, 33 A.L.R.3d 176.

Religion as factor in adoption proceedings, 48 A.L.R.3d 383.

Validity, construction, and application of statute imposing upon stepparent obligation to support child, 75 A.L.R.3d 1129.

Validity and enforcement of agreement by foster parents that they will not attempt to adopt foster child, 78 A.L.R.3d 770.

Age of prospective adoptive parent as factor in adoption proceedings, 84 A.L.R.3d 665.

Marital status of prospective adopting parents as factor in adoption proceedings, 2 A.L.R.4th 555.

Race as factor in adoption proceedings, 34 A.L.R.4th 167.

Marital or sexual relationship between parties as affecting right to adopt, 42 A.L.R.4th 776.

Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70.