O.C.G.A. § 19-8-5 (2019)
Third party adoption by party who is not stepparent or relative of child
(a) A child may be adopted by a third party who is neither the stepparent nor relative of that child, as such individuals are described in subsection (a) of Code Sections 19-8-6 and 19-8-7, only if each living parent and guardian of such child has voluntarily and in writing surrendered all of his or her rights to such child to that third party for the purpose of enabling that third party to adopt such child. A third party to whom such child is voluntarily surrendered shall be financially responsible for such child as of the date of surrender by the parent. Except as provided in subsection (l) of this Code section, no child shall be placed with a third party for purposes of adoption unless prior to the date of placement a home study shall have been completed, and the home study report recommends placement of a child in such third party’s home. (b) 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.
(c) The surrender of rights 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 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. The name and address of each individual to whom the child is surrendered may be omitted to protect confidentiality, provided the surrender of rights sets forth the name and address of his or her agent for purposes of notice of revocation as provided for in subsection (d) of this Code section. A copy of the surrender shall be provided to the individual signing the surrender at the time of the execution thereof. (d) 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. (e)(1) The surrender of rights by a parent or guardian specified in subsection (a) of this Code section shall meet the requirements of subsection (c) 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. (3)(A) 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. (B) 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.
(C) 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. (D) The pre-birth surrender shall not be valid for use by a legal father. (E) 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. (F) 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. (f) 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. (g)(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. (h) 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. (i) 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. (j) A petition for adoption pursuant to this Code section shall be filed within 60 days from the date the surrender of rights is executed; provided, however, that for good cause shown the court may waive the 60 day requirement. If the petition for adoption is not filed within the time period specified by this subsection and the court does not waive the 60 day requirement or if the proceedings resulting from such petition are not concluded with an order granting such petition, then the surrender of rights shall operate as follows according to the election made in such surrender by the parent or guardian of the child: (1) In favor of such parent or guardian, with the express stipulation that neither this nor any other provision of the surrender of rights shall be deemed to impair the validity, absolute finality, or totality of such surrender under any other circumstance, once the revocation period has elapsed; (2) In favor of the child-placing agency or out-of-state licensed agency designated in the surrender of rights, if any; or (3) If the parent or guardian is not designated and no child-placing agency or out-of-state licensed agency is designated in the surrender of rights, or if the designated child-placing agency or out-of-state licensed agency declines to accept the child for placement for adoption, in favor of the department for placement for adoption pursuant to Code Section 19-8-4. (k) 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. (l) If the home study for a third-party adoption has not occurred prior to the date of placement, then the third party shall, within the petition for adoption or in a separate motion, seek an order authorizing placement of such child prior to the completion of the home study. Such petition or such motion shall identify the evaluator that the petitioner has selected to perform the home study. The court may waive the requirement of a preplacement home study in cases when a child already resides in the prospective adoptive home either as a child of one of the residents of such home or pursuant to a court order of guardianship, testamentary guardianship, or custody. (m) The court may authorize the placement prior to the completion of a home study if the court finds that such placement is in the best interests of the child. (n) If the court authorizes the placement prior to the completion of a home study, then:
(1) Such child shall be permitted to remain in the home of the third party with whom the parent or guardian placed such child pending further order of the court; (2) A copy of the order authorizing placement of such child prior to the completion of the home study shall be delivered to the department and the evaluator selected to perform the home study by the clerk of the court within 15 days of the date of the entry of such order; and (3) The home study, if not already in process, shall be initiated by the evaluator selected by the petitioner or appointed by the court within ten days of such evaluator’s receipt of the court’s order. (o) 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.
History
Code 1981, § 19-8-5, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1991, p. 1640, § 1; Ga. L. 1999, p. 252, § 4; Ga. L. 2000, p. 1589, § 3; Ga. L. 2003, p. 503, § 2; Ga. L. 2007, p. 342, §§ 3, 4/HB 497; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2011, p. 573, §§ 2, 3/SB 172; Ga. L. 2016, p. 304, § 11/SB 64; Ga. L. 2018, p. 19, § 1-1/HB 159; Ga. L. 2021, p. 151, § 3/HB 154. The 2021 amendment, effective July 1, 2021, deleted “subsection (a) of” following “adoption pursuant to” near the beginning of the first sentence of subsection (j) and near the end of paragraph (j)(3).
Annotations
Editor’s notes. 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 and 2021, see Executive Orders 04.09.20.01, 06.30.21.02, 07.22.21.02, 08.19.21.02, and 09.20.21.02. Law reviews. For comment on In re Baby Girl Clausen, 496 N.W.2d 239 (Iowa 1992), and discussion of Georgia law, see 11 Ga. St. U.L. Rev. 737 (1995). For article, “Who is Georgia’s Mother? Gestational Surrogacy: A Formulation for Georgia’s Legislature,” see 38 Ga. L. Rev. 395 (2003).
JUDICIAL DECISIONS Full faith and credit. - Alabama Supreme Court erred in refusing to grant full faith and credit to a Georgia court’s judgment of adoption making the petitioner a legal parent of the children that the petitioner and the respondent had raised together when neither the statute upon which the court relied, O.C.G.A. § 19-8-5(a), nor the Georgia courts indicated that the statute was jurisdictional and, thus, there was nothing to rebut the
presumption that the Georgia judgment was issued by a court with jurisdiction. V.L. v. E.L., 577 U.S. 404, 136 S. Ct. 1017, 194 L. Ed. 2d 92, 2016 U.S. LEXIS 1653 (2016). Custodian not legal guardian. - Grandmother who was temporary legal custodian of child under juvenile court deprivation order was not a legal guardian for purposes of surrendering rights in adoption proceedings. Edgar v. Shave, 205
Ga. App. 337, 422 S.E.2d 234, 1992 Ga. App. LEXIS 1137 (1992). Marriage to mother and recognition of child post birth. - Defendant became the legal father of the child by operation of law when the defendant married the mother after the child was born and recognized the child as the defendant’s own. Poe v. Cantrell, 361 Ga. App. 607, 863 S.E.2d 405, 2021 Ga. App. LEXIS 525 (2021). Foster parents did not have right to adopt child when rights were surrendered in favor of grandmother. - Fos-
ter parents did not have standing to pursue an adoption of a foster child that had been living happily with the child’s grandmother for three years because the biological parents did not surrender their rights in favor of the foster parents under O.C.G.A. § 19-8-5, and the Foster Parent’s Bill of Rights, O.C.G.A. § 49-5-281, did not grant adoption rights. Owen v. Watts, 303 Ga. App. 867, 695 S.E.2d 62, 2010 Ga. App. LEXIS 392 (2010), cert. denied, No. S10C1439, 2010 Ga. LEXIS 906 (Ga. Nov. 22, 2010).
RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 1B Am. Jur. Pleading and Practice Forms, Adoption, §§ 84 et seq., 124 et seq. ALR. Parents’ mental illness or mental defi-
ciency as ground for termination of parental rights - Constitutional issues, 110 A.L.R.5th 579.