2021 Georgia Code
Title 19 - Domestic Relations
Chapter 8 - Adoption
Article 1 - General Provisions
§ 19-8-6. (See Editor's notes.) Stepparent Adoption

1. 1. A child whose legal father and legal mother are both living but are not still married to each other may be adopted by the spouse of either parent only when the other parent voluntarily and in writing surrenders all of his or her rights to the child to that spouse for the purpose of enabling that spouse to adopt the child and the other parent consents to the adoption and, when there is any guardian of that child, each such guardian has voluntarily and in writing surrendered to such spouse all of his or her rights to the child for the purpose of such adoption.
   2. A child who has only one parent still living may be adopted by the spouse of that parent only if that parent consents to the adoption and, when there is any guardian of that child, each such guardian has voluntarily and in writing surrendered to such spouse all of his or her rights to the child for the purpose of such 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 specified in this Code section shall be executed following the birth of the child 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 subsection (a) of this Code section shall meet the requirements of subsection (e) 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 purposes 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.
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 or consents to the adoption of her child by her spouse 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 pursuant to this Code section, the representative of each petitioner or the representative of the individual signing such surrender shall execute an affidavit meeting the requirements of subsection (k) 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 or consent 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 or consent 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. The parental consent by the spouse of a stepparent seeking to adopt a child of that spouse and required by subsection (a) of this Code section shall meet the requirements of subsection (l) of Code Section 19-8-26.Such consent shall be signed under oath and in the presence of a notary public.
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, §19-8-6, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1991, p. 1640, § 2; Ga. L. 1999, p. 252, § 5; Ga. L. 2018, p. 19, § 1-1/HB 159.)

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

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 annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). 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 § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5, are included in the annotations for this Code section.

- Grant of adoption pursuant to former § 19-8-6(b), prior to the Supreme Court's ruling in Thorne v. Padgette, 259 Ga. 650, 386 S.E.2d 155 (1990), must be reversed because former subsection (b) foreclosed an inquiry into a parent's reasons for failure to support the child to be adopted, thus denying due process. Moore v. Butler, 195 Ga. App. 1, 392 S.E.2d 285 (1990) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Adoption decree terminating a father's parental rights failed to set forth mandatory findings of fact and conclusions of law, pursuant to O.C.G.A. § 19-8-18(b), based on the criteria of O.C.G.A. § 19-8-10(b)(1) as to whether the father's failure to communicate with the child for two years occurred immediately prior to the filing of the petition for adoption, whether the father made a bona fide attempt to communicate with the child, whether the father's failure to communicate was without justifiable cause, and the basis for the opinion regarding the best interests of the child. Maynard v. Brown, 276 Ga. App. 229, 622 S.E.2d 901 (2005).

Trial court erred by terminating a biological father's parental rights and ordering step-father adoption because the court failed to set forth specific findings of fact to support the conclusion that the requisites of O.C.G.A. § 19-8-10(b) as to abandonment of the child had been met. Ray v. Hann, 323 Ga. App. 45, 746 S.E.2d 600 (2013).

- Trial court erred by holding a biological father, who was not the legal father of the child, could not surrender all his rights to the child for purposes of adoption by the child's stepfather. In re C.N.W., 274 Ga. 765, 560 S.E.2d 1 (2002).

Because a father failed to communicate with the children or to pay the court-ordered support for more than one year, the father's consent to the adoption of the children by their stepparent, the mother's new husband, was not required. McCurry v. Harding, 270 Ga. App. 416, 606 S.E.2d 639 (2004).

Trial court did not abuse the court's broad discretion in finding the adoption of a child by a stepparent to be in the child's best interest and thereby terminating a biological parent's parental rights as the evidence established that the biological parent failed to see the child for over five years, never provided financial support for the child, and failed to communicate with the child with no justifiable cause for such failure shown. Johnson v. Taylor, 292 Ga. App. 354, 665 S.E.2d 49 (2008).

Denial of the stepmother's adoption petition and termination of the parental rights of the child's biological mother was upheld because the trial court acted within the court's discretion in finding that the termination of the biological mother's parental rights was not in the child's best interests as the biological mother had been sober for years, had recently attained a job, was a good mother to children in her care, and made efforts to communicate and develop a relationship with the child. Price v. Grehofsky, 349 Ga. App. 214, 825 S.E.2d 594 (2019).

- Trial court erred by granting a stepparent's petition to adopt an eight-year-old child and by terminating the parental rights of one of the child's natural parents as the trial court failed to make any finding in the court's adoption decree as to whether the natural parent's lack of communication with the child was without justifiable cause as required by O.C.G.A. § 19-8-18(b). Further, the trial court erred by basing the court's adoption decision, in part, on O.C.G.A. § 19-8-10(a)(4) as the stepparent's petition did not assert any claim pursuant to § 19-8-10(a) and, instead, relied exclusively on § 19-8-10(b); thus, the natural parent was not served with a petition making allegations under subsection (a) and, therefore, received no notification that the natural parent had to prepare to show cause why the natural parent's parental rights should not be terminated pursuant to subsection (a). Smallwood v. Davis, 292 Ga. App. 173, 664 S.E.2d 254 (2008).

Mother's affidavit containing knowingly false statements purporting to address the material issues of the natural father's lack of parental involvement does not substantially comply with the requirements of O.C.G.A. §§ 19-8-6(g) and19-8-26(h) so as to sustain a judgment terminating the father's parental rights based thereon. Coleman v. Grimes, 250 Ga. App. 880, 553 S.E.2d 185 (2001).

Although a mother failed to provide an affidavit as required by O.C.G.A. § 19-8-26(h) in an adoption petition by the new husband over the mother's three minor children, such was deemed immaterial and therefore harmless because the statutory requisites had been met because the mother alleged that the father did not live with the children, that he failed to pay the court-ordered support for them for more than a year, and the mother asserted that the father provided no financial assistance. McCurry v. Harding, 270 Ga. App. 416, 606 S.E.2d 639 (2004).

Cited in Moore v. Pope, 196 Ga. App. 475, 396 S.E.2d 243 (1990); Woodall v. Johnson, 348 Ga. App. 820, 823 S.E.2d 379 (2019).

RESEARCH REFERENCES

ALR.

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

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.

Natural parent's indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 A.L.R.5th 375.