A.R.S. § 8-106

 

Arizona Revised Statutes Annotated Currentness
Title 8. Children
Chapter 1. Adoption
Article 1. General Provisions

§ 8-106. Consent to adoption; waiver; consent to the release of information; notification to potential fathers

A. The court shall not grant an adoption of a child unless consent to adopt has been obtained and filed with the court from the following:

1. The child's birth or adoptive mother, if living.

2. The child's father if any of the following is true:

(a) The father was married to the child's mother at the time of conception or at any time between conception and the child's birth unless his paternity is excluded or another man's paternity is established pursuant to title 25, chapter 6, article 1.

(b) The father has adopted the child.

(c) The father's paternity is established under title 25, chapter 6, article 1 or § 36-334.

3. A child who is twelve years of age or older and who gives consent in open court.

4. Any guardian of the person of the child who is appointed by a court and who is given authority by it to consent to the child's adoption.

5. An agency that has been given consent to place the child for adoption by the parent or parents whose consent would be necessary under paragraph 1 or 2 of this subsection, or that has been given authority in other legal proceedings to place the child for adoption.

6. The guardian of any adult parent for whom a guardian is currently appointed.

7. The division if it has been given consent to place the child for adoption by the parent or parents whose consent would otherwise be necessary pursuant to paragraph 1 or 2 of this subsection or if it has been given authority in other legal proceedings to place the child for adoption. The court may waive the requirement for consent if the court determines, after a hearing on actual notice to all persons who may be adversely affected, that waiving the requirement is clearly in the child's best interest.

B. It is not necessary for a person to obtain consent to adopt from the following:

1. An adult parent for whom a guardian is currently appointed.

2. A parent whose parental rights have been terminated by court order.

3. A parent who has previously consented to an agency's or the division's placement of the child for adoption.

4. A person whose consent is not required under subsection A of this section.

C. The minority of the child or parent does not affect the child's or parent's competency to give consent in the instances set forth in this section.

D. A consent to adopt is irrevocable unless obtained by fraud, duress or undue influence.

E. An agency, the division or an attorney participating or assisting in a direct placement adoption pursuant to § 8-130 shall obtain from a birth parent, at the time consent for adoption is obtained, a notarized statement granting permission or withholding permission for the child being adopted, when the child reaches eighteen years of age, to obtain identifying and nonidentifying information about the child and the consenting birth parent. The agency, division or attorney shall inform the birth parent at the time of obtaining the notarized statement that the decision to grant permission or withhold permission may be changed at any time by filing a notarized statement with the court. The most recent notarized statement shall operate as consent for the court to grant or withhold identifying and nonidentifying information.

F. A notarized affidavit signed by the mother listing all potential fathers shall be filed with the court. The affidavit shall attest that all of the information contained in the affidavit is complete and accurate.

G. Notice shall be served on each potential father as provided for the service of process in civil actions. The notice shall be substantially in the form prescribed in subsection I of this section and shall inform the potential father of all of the following:

1. That adoption is planned.

2. The potential father's right to consent or withhold consent to the adoption.

3. The potential father's responsibility to initiate paternity proceedings under title 25, chapter 6, article 1, and to serve the mother within thirty days of completion of service.

4. The potential father's responsibility to proceed to judgment in the paternity action.

5. The potential father's right to seek custody.

6. The potential father's responsibility to begin to provide financial support for the child if paternity is established.

7. That the potential father's failure to file a paternity action pursuant to title 25, chapter 6, article 1, and to serve the mother and proceed to judgment in the paternity action as prescribed by this section, bars the potential father from bringing or maintaining any action to assert any interest in the child.

H. A mother may apply to the court for permission to omit her address from the affidavit and from the notice to potential fathers. The court shall grant this request if the mother shows to the court's satisfaction this is necessary to protect her safety.

I. The notice required pursuant to subsection G of this section shall be in substantially the following form:

Notice:
Notice is given to _______________ that you have been identified by ________________________, the natural mother, residing at _____________________, as a potential father of a child to be born or, born on _____________, in ___________.

You are informed of the following:

1. ______________, the natural mother, plans to place the child for adoption.

2. Under §§ 8-106 and 8-107, Arizona Revised Statutes, you have the right to consent or withhold consent to the adoption.

3. Your written consent to the adoption is irrevocable once you give it.

4. If you withhold consent to the adoption, you must initiate paternity proceedings under title 25, chapter 6, article 1, Arizona Revised Statutes, and serve the mother within thirty days after completion of service of this notice.

5. You have the obligation to proceed to judgment in the paternity action.

6. You have the right to seek custody.

7. If you are established as the child's father, you must begin to provide financial support for the child.

8. If you do not file a paternity action under title 25, chapter 6, article 1, Arizona Revised Statutes, and do not serve the mother within thirty days after completion of the service of this notice and pursue the action to judgment, you cannot bring or maintain any action to assert any interest in the child.

9. The Indian child welfare act may supersede the Arizona Revised Statutes regarding adoption and paternity.

10. You may wish to consult with an attorney to assist you in responding to this notice.

J. A potential father who fails to file a paternity action and who does not comply with all applicable service requirements within thirty days after completion of service as prescribed in subsection G of this section waives his right to be notified of any judicial hearing regarding the child's adoption or the termination of parental rights and his consent to the adoption or termination is not required.

CREDIT(S)

Added by Laws 1970, Ch. 205, § 2. Amended by Laws 1972, Ch. 114, § 2; Laws 1976, Ch. 172, § 1; Laws 1983, Ch. 225, § 1; Laws 1988, Ch. 297, § 2; Laws 1992, Ch. 317, § 1; Laws 1994, Ch. 116, § 1; Laws 1995, Ch. 221, § 1; Laws 1996, Ch. 170, § 1; Laws 1996, Ch. 192, § 15; Laws 1996, Ch. 300, § 2; Laws 1999, Ch. 347, § 4; Laws 2000, Ch. 155, § 3; Laws 2002, Ch. 173, § 1; Laws 2003, Ch. 181, § 1; Laws 2004, Ch. 117, § 1; Laws 2006, Ch. 58, § 1; Laws 2009, Ch. 109, § 1.

Section 25-801 et seq.

HISTORICAL AND STATUTORY NOTES

Source:
Civ.Code 1913, §§ 1189, 1190.
Rev.Code 1928, §§ 119, 120.
Code 1939, § 27-203.
Code 1939, Supp. 1952, § 27-203.
Laws 1952, Ch. 96, § 3.
A.R.S. former §§ 8-103, 8-104.

The 1972 amendment inserted the words "Notwithstanding the provisions of § 8- 533" and "on actual notice to all persons adversely affected" in subsec. C.

The 1976 amendment deleted at the beginning of subsec. C "Notwithstanding the provisions of § 8-533", and deleted the requirement for the following consent:

"Consent is not necessary from a father who was not married to the mother of the child both at the time of its conception and the time of its birth, unless the father under oath has acknowledged parentage in a document filed with the court or with the agency or division at or prior to the time the petition is filed, or unless the parentage of the father has been previously established by judicial proceedings."

The 1983 amendment added subsec. E.

The 1988 amendment, in subsec. A, inserted "of a child or a foreign born person twenty-one years of age or less".

The 1992 amendment substituted "birth" for "natural" preceding "parents" in par. 1, subsec. A; and added subsec. F.

The 1994 amendment rewrote this section which, prior thereto, provided:

"A. No adoption of a child or a foreign born person twenty-one years of age or less shall be granted unless consent to adopt has been obtained and filed with the court from the following:

"1. From both birth parents, if living, except in the following cases:

"(a) Consent is not necessary from a parent who has been declared incompetent.

"(b) Consent is not necessary from a parent whose parental rights have been judicially terminated.

"(c) Consent is not necessary from a parent who has previously consented that an agency or the division place the child for adoption.

"2. From any guardian of the person of the child appointed by a court and given authority by it to consent to the child's adoption.

"3. From an agency or the division which has been given consent to place the child for adoption by the parent or parents whose consent would be necessary under paragraph 1 of this subsection, or which has been given authority in other legal proceedings to place the child for adoption.

"B. If the child is twelve years of age or older, the adoption shall not be granted without his consent. Such consent shall be given in open court or shall be in conformity with this section or in such other form as the court may direct.

"C. The court may waive the requirement of the consent of any person required to give consent when after a hearing on actual notice to all persons adversely affected the court determines that the interests of the child will be promoted thereby. In such case, the court shall make written findings of all facts upon which its order is founded.

"D. The minority of the child or parent shall not affect his competency to give consent in the instances set forth in this section.

"E. A consent to adopt is irrevocable unless obtained by fraud, duress or undue influence.

"F. Beginning January 1, 1993, an agency, the division or an attorney participating or assisting in a direct placement adoption pursuant to § 8-130 shall obtain from a birth parent giving consent at the time consent for adoption is obtained a notarized statement granting or withholding consent for the child adopted to review the adoption records upon reaching twenty-one years of age. The agency, division or attorney shall inform the birth parent at the time of obtaining the notarized statement that the decision to grant or withhold consent may be changed at any time by filing a notarized statement with the court and the agency, division or attorney who obtained the original notarized statement."

The 1995 amendment by Ch. 221, substituted "at any time between conception and the child's birth" for "any time before the child's birth" in subsec. A, par. 2(a); substituted "title 12, chapter 7, article 3" for "§ 12-852" in two places; rewrote subsec. F; substituted "Notice shall be served" for "The mother shall serve notice" in subsec. G; and inserted subsec. G, par. 6. Subsec. F had read:

"F. At the time of or before giving consent to adopt, a mother shall file a notarized affidavit with the court that lists all potential fathers. The mother shall sign the affidavit and attest that all of the information contained in the affidavit is complete and accurate."

The 1996 amendment by Ch. 170, in subsec. A, par. 2 (c), added the reference to § 36-322, and made a nonsubstantive change; and substituted "the child's or parent's competency" for "his competency" in subsec. C.

The 1996 amendment by Ch. 192 substituted references to title 25, chapter 6, art. 1 for references to title 12, chapter 7, article 3 throughout.

The 1996 amendment by Ch. 300 rewrote subsec. E, which had read:

"E. An agency, the division or an attorney participating or assisting in a direct placement adoption pursuant to § 8-130 shall obtain from a birth parent giving consent at the time consent for adoption is obtained a notarized statement granting or withholding consent for the child adopted to review the adoption records upon reaching twenty-one years of age. The agency, division or attorney shall inform the birth parent at the time of obtaining the notarized statement that the decision to grant or withhold consent may be changed at any time by filing a notarized statement with the court and the agency, division or attorney who obtained the original notarized statement."

The 1999 amendment by Ch. 347, in subsec. A, substituted "The court shall not grant an adoption of a child" for "No adoption of a child shall be granted" in the introductory paragraph, added "unless another man's paternity is established pursuant to title 25, chapter 6, article 1" in par. 2, subd. (a); in subsec. E, substituted "permission for the child being adopted to" for "consent for the child adopted to" in the introductory paragraph, substituted "permission" for "consent" in par. 1, and deleted "Grant or withhold consent to" at the beginning of par. 2.

The 2000 amendment by Ch. 155 inserted, in subsec. A, par. 2, item (a), "his paternity is excluded" following "unless".

The 2002 amendment by Ch. 173, in subsec. A, in par. 4, inserted "who is", in par. 5, substituted "that" for "which"; in subsec. C, substituted "does" for "shall"; in subsec. G, in the introductory par., inserted "shall be substantially in the form prescribed in subsection I of this section and", in par. 1, substituted "That" for "The", inserted a new par. 4 and renumbered subsequent paragraphs accordingly, in par. 7, added "That", and substituted "and to serve the mother and proceed to judgment in the paternity action as" for "within thirty days of completion of the service of the notice"; and inserted subsec. I.

The 2003 amendment by Ch. 181, rewrote subsec. E, which had read:

"E. An agency, the division or an attorney participating or assisting in a direct placement adoption pursuant to § 8-130 shall obtain from a birth parent giving consent at the time consent for adoption is obtained a notarized statement granting or withholding permission for the child being adopted to:

"1. Obtain identifying information about the child and the consenting birth parent on reaching twenty-one years of age. The agency, division or attorney shall inform the birth parent at the time of obtaining the notarized statement that the decision to grant or withhold permission may be changed at any time by filing a notarized statement with the court and the agency, division or attorney that obtained the original notarized statement.

"2. Be informed of the death of the child adopted and the date and the cause of death."

The 2004 amendment by Ch. 117 substituted the reference to "§ 36-334" for the reference to "§ 36-322" in subsec. A, par. 2(c); and inserted "Arizona Revised Statutes" in subsec. I, par. 8.

The 2006 amendment by Ch. 58 added subsec. J.

The 2009 amendment by Ch. 109 removed "or the division" following "An agency" in subsec. A, par. 5; and inserted subsec. A, par. 7.

Former § 8-106, enacted as part of the revision effective January 9, 1956, relating to investigation of the circumstances of the adoption, was repealed by Laws 1970, Ch. 205, § 1. See, now, § 8-105.

Reviser's Notes:

1994 Note. Pursuant to authority of § 41-1304.02, in subsection A, paragraph 2, subdivision (a) after "before" the second "the" was deleted as a correction of a manifest clerical error.

1996 Note. Prior to the 1999 amendment, this section contained the amendments made by Laws 1996, Ch. 170, sec. 1, Ch. 192, sec. 15 and Ch. 300, sec. 2 that were blended together pursuant to authority of § 41-1304.03.

2002 Note. Pursuant to authority of § 41-1304.02, in the section heading "who shall consent;" was removed after "adoption;".

A. R. S. § 8-106, AZ ST § 8-106

Current through the Second Regular Session and Ninth Special Session of        
the Forty-Ninth Legislature (2010).                                     .      

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