Consent To Adoption Of Minor Child (Page 5 of 5) in pdf

representation as a factor in determining whether the consent was freely and voluntarily given.

Counseling by attorney. A good practice for lawyers representing parents who are consenting to

adoption of their child is to video or tape record the session, to provide evidence of the explanation and advice

given to the parent, should the parent later claim the consent was not freely and voluntarily signed. The Court in

In re Adoption of Baby Girl T., 28 Kan. App. 2d 712, 21 P.3d 581 (2001), noted that a lawyer representing both

the adoptive parents and a birth parent would be well advised to visit with the birth parent individually to ensure

that each client has the opportunity to disclose information to the lawyer without fear of recrimination from others.

The Court suggested that the lawyer explain each section of the adoption consent, perhaps asking the birth parent

to initial each section as he or she reads it.

Revocation. A parent does not have standing to seek to challenge a consent to adoption given by the

other parent; K.S.A. 59-2114 permits only the parent giving a consent to later question the validity of the consent.

In re Adoption of Trent, 229 Kan. 224, 231-32, 624 P.2d 433, 439 (1981).

In order to rebut the presumption that the consent was freely and voluntarily given, a parent must prove

fraud, duress, undue influence, mistake or lack of understanding. In re Adoption of Chance, 4 Kan. App. 2d 576,

583, 609 P.2d 232, 238 (1980). A misunderstanding between the adoptive parents and the birth mother regarding

visitation with the child does not necessarily constitute fraud, misunderstanding or duress sufficient to void a

consent to adoption. In re Adoption of Baby Girl T., 28 Kan. App. 2d 712, 717-20, 21 P.3d 581, 587-89 (2001).

The burden of proof is shifted from the birth parent to the adopting parents when there is evidence that

someone in a confidential or fiduciary relationship with the birth parent exerted undue influence and there are

suspicious circumstances, such as a family relationship between the birth mother’s physician and the attorney for

the adopting parents. In re Adoption of Baby Boy Irons, 235 Kan. 540, 684 P.2d 332 (1984). Under the facts of

this case, the Court found that the consent was freely and voluntarily given.

Waiver of notice of proceedings. A provision in a consent to adoption that waives “all notice of

proceedings,” is valid, even though the parent claims later not to have known the time frame in which the

proceedings would take place. In re Adoption of J.H.G., 254 Kan. 780, 800, 869 P.2d 640, 653 (1994).

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