2020 Georgia Code
Title 19 - Domestic Relations
Chapter 8 - Adoption
Article 1 - General Provisions
§ 19-8-4. (See Editor's notes.) Adoption Through the Department, Child-Placing Agency, or Out-of-State Licensed Agency

1. A child may be adopted through the department, any child-placing agency, or any out-of-state licensed agency only if each living parent and guardian of such child:
   1. Has voluntarily and in writing surrendered all of his or her rights to the child to the department, a child-placing agency, or an out-of-state licensed agency as provided in this Code section and such department, child-placing agency, or out-of-state licensed agency thereafter consents to the adoption; or
   2. Has had all of his or her rights to the child terminated by order of a court of competent jurisdiction, the child has been committed by the court to the department, a child-placing agency, or an out-of-state licensed agency for placement for adoption, and such department, child-placing agency, or out-of-state licensed agency thereafter consents to the adoption.
2. In the case of a child 14 years of age or older, the written consent of the child to his or her adoption shall be given and acknowledged in the presence of the court.
3. The surrender of rights to the department, a child-placing agency, or an out-of-state licensed agency specified in paragraphs (1) and (2) of subsection (e) of this Code section shall be executed following the birth of the child, and the pre-birth surrender to the department, a child-placing agency, or an out-of-state licensed agency specified in paragraph (3) of subsection (e) of this Code section shall be executed prior to the birth of the child.Each surrender shall be executed under oath and in the presence of a notary public and an adult witness.A copy of the surrender shall be provided to the individual signing the surrender at the time of the execution thereof.
4. An individual signing a surrender of rights pursuant to this Code section shall have the right to revoke such surrender within four days as provided in subsection (a) of Code Section 19-8-9.
5. 1. The surrender of rights by a parent or guardian specified in paragraph (1) of subsection (a) of this Code section shall meet the requirements of subsection (a) of Code Section 19-8-26.Such surrender shall be signed under oath and in the presence of a notary public and an adult witness.
   2. A biological father who is not a legal father of a child may surrender all his rights to the child for the purpose of an adoption pursuant to this Code section.Such surrender shall meet the requirements of subsection (d) of Code Section 19-8-26.Such surrender shall be signed under oath and in the presence of a notary public and an adult witness.
   3. 1. A biological father who is not a legal father of a child may execute a surrender of his rights to the child prior to the birth of the child for the purpose of an adoption pursuant to this Code section.A pre-birth surrender shall serve to relinquish an alleged biological father's rights to the child and to waive an alleged biological father's right to notice of any proceeding with respect to the child's adoption, custody, or guardianship.The court in any adoption proceeding shall have jurisdiction to enter a final order of adoption of the child based upon the pre-birth surrender and in other proceedings to determine the child's legal custody or guardianship shall have jurisdiction to enter an order for those purposes.
      2. The rights and responsibilities of an alleged biological father shall be permanently terminated only upon an order from a court of competent jurisdiction terminating such rights or the entry of a final order of adoption.An individual executing a pre-birth surrender pursuant to this Code section shall have the right to revoke such surrender within four days from the date of execution thereof, notwithstanding the date of birth of the child.
      3. If a final order of adoption is not entered after the execution of a pre-birth surrender and paternity is established by acknowledgment, by administrative order, or by judicial order, then an alleged biological father shall be responsible for child support or other financial obligations to the child or to a legal mother, or to both.
      4. The pre-birth surrender shall not be valid for use by a legal father.
      5. The pre-birth surrender may be executed at any time after the biological mother executes a sworn statement identifying such individual as an alleged biological father of the biological mother's unborn child meeting the requirements of subsection (m) of Code Section 19-8-26.
      6. The pre-birth surrender shall meet the requirements of subsection (f) of Code Section 19-8-26 and shall be signed under oath and in the presence of a notary public and an adult witness.
6. A surrender of rights shall be acknowledged by the individual who surrenders those rights by also signing an acknowledgment meeting the requirements of subsection (g) of Code Section 19-8-26.Such acknowledgment shall be signed under oath and in the presence of a notary public and an adult witness.
7. 1. A legal mother who surrenders her parental rights pursuant to this Code section shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26.Such affidavit shall be signed under oath and in the presence of a notary public.
   2. A legal mother who is the adoptive mother of the child and who surrenders her parental rights pursuant to this Code section shall execute an affidavit meeting the requirements of subsection (i) of Code Section 19-8-26.Such affidavit shall be signed under oath and in the presence of a notary public.
8. Whenever rights are surrendered to the department, a child-placing agency, or an out-of-state licensed agency, the department or agency representative before whom the surrender of rights is signed shall execute an affidavit meeting the requirements of subsection (j) of Code Section 19-8-26.Such affidavit shall be signed under oath and in the presence of a notary public.
9. A surrender of rights pursuant to this Code section may be given by any parent or biological father who is not a legal father of the child regardless of whether such individual is a citizen of the United States, a resident of this state, or has reached the age of 18 years.Such surrender given by such individual shall be binding upon him or her as if the individual were in all respects sui juris and shall include a consent to the jurisdiction of the courts of this state for any action filed under this article.Such surrender shall state that such individual agrees to be bound by a decree of adoption.
10. In any surrender of rights pursuant to this Code section, Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children, if applicable, shall be complied with.
11. A biological father or a legal father who signs a surrender of rights may execute an affidavit regarding his Native American heritage and military service meeting the requirements of subsection (n) of Code Section 19-8-26.Such affidavit shall be signed under oath and in the presence of a notary public.

(Code 1981, §19-8-4, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1999, p. 252, § 3; Ga. L. 2007, p. 342, §§ 1, 2/HB 497; Ga. L. 2016, p. 304, § 10/SB 64; Ga. L. 2018, p. 19, § 1-1/HB 159.)

The 2016 amendment, effective July 1, 2016, deleted "either a voluntary acknowledgment of legitimation pursuant to the provisions of paragraph (2) of subsection (g) of Code Section 19-7-22 or" following "who has executed" in subparagraph (e)(3)(D).

The 2018 amendment, effective September 1, 2018, rewrote this Code section.

- Termination of parental rights, T. 15, C. 11.

Adoption - Expediting uncontested agency adoption hearings, Ga. Unif. S. Ct. R. 47.

- Ga. L. 2016, p. 304, § 18/SB 64, not codified by the General Assembly, provides: "This Act shall not be construed to affect a voluntary acknowledgment of legitimation that was valid under the former provisions of Code Section 19-7-21.1, nor any of the rights or responsibilities flowing therefrom, if it was executed on or before June 30, 2016."

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For a note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 171 (1981). For note, "In re Baby Girl Eason: Expanding the Constitutional Rights of Unwed Fathers," see 39 Mercer L. Rev. 997 (1988). 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 on statutes requiring consent of mother, but not of father, as prerequisite to adoption of illegitimate child, violating the fourteenth amendment equal protection clause, see 29 Emory L.J. 833 (1981). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1941, p. 300, § 3 prior to revision of this chapter by Ga. L. 1977, p. 201 and former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1, are included in the annotations for this Code section.

Judge hearing adoption case has wide discretion which will not be overturned unless the judge's discretion has been abused so that even slight evidence will support the judgment denying the petition. Owens v. Griggs, 151 Ga. App. 730, 261 S.E.2d 463 (1979) (decided under Ga. L. 1941, p. 300, § 3).

In adoption proceedings, best interest of child is always a prime factor to be considered. Owens v. Griggs, 151 Ga. App. 730, 261 S.E.2d 463 (1979) (decided under Ga. L. 1941, p. 300, § 3).

- Absolute requirement that consent of legal custodian be obtained as prerequisite to adoption applies as fully when Department of Family and Children Services is custodian as it does when natural parents have custody. Roberts v. Muscogee County Dep't of Family & Children Servs., 150 Ga. App. 750, 258 S.E.2d 689 (1979) (decided under Ga. L. 1941, p. 300, § 3).

- Evidence terminating parental right of living parent must be legally sufficient to authorize finding of fact by court that consent has been given or that parent has forfeited right to relationship. Owens v. Griggs, 151 Ga. App. 730, 261 S.E.2d 463 (1979) (decided under Ga. L. 1941, p. 300, § 3).

- County Department of Family and Children Services was properly permitted to intervene with regard to a couple's petition seeking to adopt a child as the child was adjudicated deprived and placed in the temporary custody of the Department. While the biological parents' surrender of their parental rights was the basis for the adoption petition, the Department remained the temporary legal custodian of the child and, given that the Department's interest in the child, the juvenile court did not err by allowing the Department to intervene through the Department's objection to the adoption. Sastre v. McDaniel, 293 Ga. App. 671, 667 S.E.2d 896 (2008).

- If there is no parental consent and the natural parent has not abandoned the child, the court is required to deny the adoption. Spires v. Bittick, 171 Ga. App. 914, 321 S.E.2d 407 (1984) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Because a parent's written surrender of parental rights did not expire, and O.C.G.A. § 19-8-4 did not have a time limitation for filing an adoption petition, the appeals court rejected that parent's argument that such became invalid when the Department of Family and Children Services did not pursue adoption. In the Interest of A.C., 283 Ga. App. 743, 642 S.E.2d 418 (2007).

- Mere failure to pay child support does not in and of itself evince such abandonment of the child as to render the natural parent's consent to adoption unnecessary; however, abandonment is a separate issue from failure to pay child support, which though admittedly a type of abandonment, constitutes a separate ground for terminating parental rights under the law. Ward v. Weymouth, 151 Ga. App. 341, 259 S.E.2d 727 (1979) (decided under Ga. L. 1941, p. 300, § 3).

- Mere failure to promptly pay child support or to be persistent in exercising visitation rights is insufficient to terminate parental rights. Spires v. Bittick, 171 Ga. App. 914, 321 S.E.2d 407 (1984) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Consent for adoption given freely and voluntarily may not be revoked as matter of right, but revocation may be had for good and sufficient cause. Wellfort v. Bowick, 147 Ga. App. 565, 249 S.E.2d 363 (1978) (decided under Ga. L. 1941, p. 300, § 3).

Father, after giving consent to third party to adopt, cannot consent to adoption by grandparents. Irwin v. Smith, 240 Ga. 553, 242 S.E.2d 64 (1978) (decided under Ga. L. 1941, p. 300, § 3).

- Because Georgia law affords an unwed mother a fitness test or veto power under the same circumstances the law must also afford an unwed father a fitness test or veto power, provided he has not abandoned his opportunity interest. In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459 (1987) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Law of virtual adoption does not require technical words or formality in execution of agreements and it is not necessary that the parties be much acquainted with the law; the nature of the parties' intended and agreed upon provision for the child in question is controlling. Anderson v. Maddox, 257 Ga. 478, 360 S.E.2d 590 (1987) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- There is nothing in the adoption statute which authorizes an assignment of adoption rights from one third party to another. Tyson v. Department of Human Resources, 165 Ga. App. 414, 301 S.E.2d 485 (1983) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

Intent of phrase "failed significantly . . . to provide . . . support" contained in former § 19-8-6(b) was to require more, or significant, support before parental consent would be required as provided in former § 19-8-3. Prescott v. Judy, 157 Ga. App. 735, 278 S.E.2d 493 (1981) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

If any evidence supports judgment in adoption proceeding, the judgment must be affirmed by the Court of Appeals. Prescott v. Judy, 157 Ga. App. 735, 278 S.E.2d 493 (1981) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- Although when appellees filed their petition for adoption, their marriage certificate was not attached, it was supplied by amendment which related back to date pleading was filed, thus curing omission from the petition. Owens v. Worley, 163 Ga. App. 488, 295 S.E.2d 199 (1982) (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

Adoption laws are to be strictly construed in favor of natural parents. Johnson v. Strickland, 88 Ga. App. 281, 76 S.E.2d 533 (1953) (decided under Ga. L. 1941, p. 300, § 3).

Adoption is a right which did not exist at common law. Thus, since it is statutory in nature, it must be strictly construed in favor of natural parents. Johnson v. Edison, 235 Ga. 820, 221 S.E.2d 813 (1976) (decided under Ga. L. 1941, p. 300, § 3).

- Although best interest of child is ultimate concern, focus must first be on natural parents. Johnson v. Edison, 235 Ga. 820, 221 S.E.2d 813 (1976) (decided under Ga. L. 1941, p. 300, § 3).

Written consent of living parents freely and voluntarily given is essential prerequisite to adoption proceedings. Ritchie v. Dillon, 103 Ga. App. 7, 118 S.E.2d 115 (1961) (decided under Ga. L. 1941, p. 300, § 3).

Natural fathers have rights in their children and termination of those rights is required in adoption proceeding. Wojciechowski v. Allen, 238 Ga. 556, 234 S.E.2d 325 (1977) (decided under Ga. L. 1941, p. 300, § 3).

When inducements securing consent prevent free exercise of parents' will, court must deny adoption. Keheley v. Koonce, 85 Ga. App. 893, 70 S.E.2d 522 (1952) (decided under Ga. L. 1941, p. 300, § 3).

- If child is legitimate, failure to obtain father's consent to the child's adoption will bar adoption. Ellis v. Woods, 214 Ga. 105, 103 S.E.2d 297 (1958) (decided under Ga. L. 1941, p. 300, § 3).

Consent by one who has lost parental rights by order of a court of competent jurisdiction is not required. McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967) (decided under Ga. L. 1941, p. 300, § 3).

- Both parents need not be in same category respecting adoption of their child, that is, both consenting or both being in position of having abandoned child. If either parent consents, that is sufficient to meet requirements of section as to consent so far as that parent is concerned, and if either parent has abandoned child that, too, would meet requirements of exception to statute as to that parent. Therefore, if one parent consents to the adoption and the other parent has abandoned the child so that consent of such parent is not necessary, the essential provisions of the law relating to parental rights are satisfied. Phillips v. Massey, 74 Ga. App. 239, 39 S.E.2d 493 (1946) (decided under Ga. L. 1941, p. 300, § 3).

Adoption agency as legal custodian stands in loco parentis and has all legal rights of natural parent, including benefit of prima facie right to custody. 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 Ga. L. 1941, p. 300, § 3).

Placement agency has right to choose adoptive parents by giving or refusing consent to adopt. 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 Ga. L. 1941, p. 300, § 3).

Child has no right to choose adoptive parents or consent to adoption until age of 14. 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 Ga. L. 1941, p. 300, § 3).

Contract of adoption is irrelevant and immaterial in adoption case other than on question of consent. Wheeler v. Little, 113 Ga. App. 106, 147 S.E.2d 352 (1966) (decided under Ga. L. 1941, p. 300, § 3).

- After child's natural mother was offered plane fare if she would sign adoption agreement, consent to adoption, at least as to natural mother, was not freely and voluntarily given as required so as to preclude right to withdraw such consent as a matter of right because consent was based upon a contract which was void as against public policy. Downs v. Wortman, 228 Ga. 315, 185 S.E.2d 387 (1971) (decided under Ga. L. 1941, p. 300, § 3).

- Mere fact that natural mother consented to adoption before seeing her offspring would not permit her, as a matter of right, to repudiate contract under which her child had received valuable benefits, and to withdraw her consent. Hendrix v. Hunter, 99 Ga. App. 785, 110 S.E.2d 35 (1959) (decided under Ga. L. 1941, p. 300, § 3).

- While it is true that it is certainly best for all concerned that the natural mother not know who the adoptive parents are, and while it is generally true that welfare agencies will not recommend adoption when such is the case, nevertheless, such knowledge on the part of the natural mother is not, in and of itself, sufficient cause to withdraw her consent. Hendrix v. Hunter, 99 Ga. App. 785, 110 S.E.2d 35 (1959) (decided under Ga. L. 1941, p. 300, § 3).

- Contract wherein mother of child agrees to adoption by another in consideration of monetary consideration to herself is void as against public policy. Downs v. Wortman, 228 Ga. 315, 185 S.E.2d 387 (1971) (decided under Ga. L. 1941, p. 300, § 3).

- Contract wherein mother of child agrees to adoption of her child by another in consideration of monetary consideration which is to flow to child is not void as against public policy. Downs v. Wortman, 228 Ga. 315, 185 S.E.2d 387 (1971) (decided under Ga. L. 1941, p. 300, § 3).

Photostatic copy of mother's purported consent to adoption was properly admitted in evidence. Smith v. Smith, 224 Ga. 442, 162 S.E.2d 379 (1968) (decided under Ga. L. 1941, p. 300, § 3).

- Admission in evidence of translation into English from German of mother's written consent was not error when the witness, a university professor of the German language, submitted the document, which the professor swore was a correct translation of written consent. Smith v. Smith, 224 Ga. 442, 162 S.E.2d 379 (1968) (decided under Ga. L. 1941, p. 300, § 3).

Cited in Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Berry v. Samuels, 145 Ga. App. 687, 244 S.E.2d 593 (1978); Fulton County Dep't of Family & Children Servs. v. Perkins, 244 Ga. 237, 259 S.E.2d 427 (1978); Mead v. Owens, 149 Ga. App. 303, 254 S.E.2d 431 (1979); Nelson v. Taylor, 244 Ga. 657, 261 S.E.2d 579 (1979); Farmer v. Pressley, 152 Ga. App. 288, 262 S.E.2d 499 (1979); Hinkins v. Francis, 154 Ga. App. 716, 270 S.E.2d 33 (1980); Baker v. Nicholson, 158 Ga. App. 267, 279 S.E.2d 717 (1981); Curtis v. Jones, 160 Ga. App. 904, 288 S.E.2d 615 (1982); In re A.J.A., 164 Ga. App. 210, 296 S.E.2d 103 (1982); In re C.C.B., 164 Ga. App. 3, 296 S.E.2d 198 (1982); In re S.B.P., 164 Ga. App. 50, 296 S.E.2d 236 (1982); In re S.D.S., 166 Ga. App. 344, 304 S.E.2d 85 (1983); Ridgley v. Helms, 168 Ga. App. 435, 309 S.E.2d 375 (1983); Cain v. Lane, 168 Ga. App. 405, 309 S.E.2d 401 (1983); Baugh v. Robinson, 179 Ga. App. 571, 346 S.E.2d 918 (1986); In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1941, p. 300, § 3 and former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1, are included in the annotations for this Code section.

- Minor mother may give binding consent to adoption of her illegitimate child. 1948-49 Op. Att'y Gen. p. 615 (decided under Ga. L. 1941, p. 300, § 3).

- If an adoption petition is presented to the court, and the rights of the natural parents or putative father have never been addressed, the court is required to deny the petition. 1985 Op. Att'y Gen. No. U85-34 (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

- When the only documentation submitted by a child-placing agency is a statement of consent to overseas adoption presumably signed by the foreign guardian of the child, it is not sufficient to comply with the requirements of Georgia adoption law. 1985 Op. Att'y Gen. No. U85-34 (decided under former § 19-8-3, as enacted by Ga. L. 1977, p. 201, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Adoption, § 65 et seq.

- 2 C.J.S., Adoption of Persons, § 49 et seq.

- Consent by public authority or by person other than parents having control of child as necessary to valid adoption, 104 A.L.R. 1464.

Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 138 A.L.R. 1038; 156 A.L.R. 1011.

Sufficiency of parent's consent to adoption of child, 24 A.L.R.2d 1127; 15 A.L.R.5th 1.

Consent of natural parents as essential to adoption where parents are divorced, 47 A.L.R.2d 824.

Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R.2d 497.

What constitutes undue influence in obtaining a parent's consent to adoption of child, 50 A.L.R.3d 918.

Right of adopted child to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421.

Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489.

What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.

Parent's involuntary confinement, or failure to care for child as a result thereof, as permitting adoption without parental consent, 78 A.L.R.3d 712.

Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.

Adoption of child in absence of statutorily required consent of public or private agency or institution, 83 A.L.R.3d 373.

Rights of unwed father to obstruct adoption of his child by withholding consent, 22 A.L.R.4th 774, 61 A.L.R.5th 151.

Necessity and sufficiency of consent to adoption by spouse of adopting parent, 38 A.L.R.4th 768.

Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption, 71 A.L.R.4th 305.

Postadoption visitation by natural parent, 78 A.L.R.4th 218.

Validity of birth parent's "blanket" consent to adoption which fails to identify adoptive parent, 15 A.L.R.5th 1.

Legal malpractice in defense of parents at proceedings to terminate parental rights over dependent or neglected children, 18 A.L.R.5th 902.

Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443.

Parents' mental illness or mental deficiency as ground for termination of parental rights - Constitutional issues, 110 A.L.R.5th 579.