| Neb. Rev. Stat.
§ 43-104
Nebraska
Revised Statutes of 1943
Chapter
43. Infants and Juveniles
Article
1. Adoption Procedures
(A)
General Provisions
§
43-104. Adoption; consent required; exceptions.
Except as otherwise provided
in the Nebraska Indian Child Welfare Act, no adoption shall be decreed
unless written consents thereto are filed in the court of the county in
which the person or persons desiring to adopt reside and the written consents
are executed by (1) the minor child, if over fourteen years of age, or
the adult child, (2) any district court, county court, or separate juvenile
court in the State of Nebraska having jurisdiction of the custody of a
minor child by virtue of proceedings had in any district court, county
court, or separate juvenile court in the State of Nebraska or by virtue
of the Uniform Child Custody Jurisdiction and Enforcement Act, and (3)
both parents of a child born in lawful wedlock if living, the surviving
parent of a child born in lawful wedlock, the mother of a child born out
of wedlock, or both the mother and father of a child born out of wedlock
as determined pursuant
to sections 43-104.08 to 43-104.24, except that consent shall not be required
of any parent who (a) has relinquished the child for adoption by a written
instrument, (b) has abandoned the child for at least six months next preceding
the filing of the adoption petition, (c) has been deprived of his or her
parental rights to such child by the order of any court of competent jurisdiction,
or (d) is incapable of consenting. On and after April 20, 2002, a written
consent or relinquishment for adoption under this section shall not be
valid unless signed at least forty-eight hours after the birth of the
child.
Source: Laws 1943, c.
104, § 4(1), p. 350; R.S.1943, § 43-104; Laws 1951, c. 127,
§ 1, p. 546; Laws 1967, c. 248, § 1, p. 652; Laws 1971, LB 329,
§ 1; Laws 1973, LB 436, § 1; Laws 1975, LB 224, § 2; Laws
1983, LB 146, § 3; Laws 1984, LB 510, § 3; Laws 1985, LB 255,
§ 20; Laws 1988, LB 790, § 22; Laws 1995, LB 712, § 20;
Laws 1996, LB 1296, § 19; Laws 1998, LB 1041, § 7; Laws 1999,
LB 594, § 10; Laws 2002, LB 952, § 2; Laws 2003, LB 148, §
100.
CROSS REFERENCES
Nebraska Indian Child
Welfare Act, see section 43-1501.
Uniform Child Custody
Jurisdiction and Enforcement Act, see section 43-1226.
NOTES
OF DECISIONS
It is clear that the district
court is not to consider the issue of abandonment; the question of whether
the parent did in fact abandon the child, for purposes of adoption, is
exclusively for the county court. Smith v. Smith, 242 Neb. 812, 497 N.W.2d
44 (1993).
The critical period of
time during which abandonment must be shown to eliminate the necessity
for obtaining consent to adoption from a parent under this section is
the 6 months immediately preceding the filing of the petition for adoption.
In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).
The consent granted by
the district court pursuant to the provisions of this section does nothing
more than permit the county court, as the tribunal having exclusive original
jurisdiction over adoption matters, to entertain such proceedings. Klein
v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).
Abandonment for purposes
of permitting substitute consent for adoption must be proved by clear
and convincing evidence. In re Guardianship of Sain, 217 Neb. 96, 348
N.W.2d 435 (1984).
Although the critical
period of time during which abandonment must be shown to eliminate the
necessity of obtaining consent pursuant to this section is the six months
immediately preceding the filing for adoption, evidence of a parent's
conduct either before or after this period may be considered as relevant
to a determination of whether the purpose and intent of that parent was
to abandon the child or children. To prove abandonment in adoption proceedings,
the evidence must clearly and convincingly show that the parent has acted
toward the child in a manner evidencing a settled purpose to be rid of
all parental obligations and to forego all parental rights, together with
a complete repudiation of parenthood and an abandonment of parental rights
and responsibilities.
Where there has been a protracted period of totally unjustified failure
to exercise parental functions, an isolated contact does not necessarily
negate the inference that a person no longer wishes to act in the role
of a parent to a child. In re Adoption of Simonton, 211 Neb. 777, 320
N.W.2d 449 (1982).
The signing of a consent
to adoption does not, in itself, release the consenting parent from an
obligation to support the child and the court's earlier opinion in Smith
v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), should not be read that
way. Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980).
Consent for relinquishment
executed by seventeen year old mother of child born out of wedlock is
valid. Batt v. Nebraska Children's Home Society, 185 Neb. 124, 174 N.W.2d
88 (1970).
To warrant an adoption,
it must clearly appear that the natural parents, if living, had abandoned
the child for a period of at least six months. McCauley v. Stewart, 177
Neb. 759, 131 N.W.2d 174 (1964).
Adoption is permitted
where parents have been deprived of custody of minor child
by order of juvenile court. Krell v. Jenkins, 157 Neb. 554, 60 N.W.2d
613 (1953).
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