Indiana adoption law starts from the premise that in order for a child to be adopted, the child’s mother and the child’s legal father1 must consent to the adoption.
Certain actions or non-actions by a mother or legal father may vitiate the need for the parent to consent to the adoption. Indiana Code § 31-19-9-8 sets forth the consent vitiating factors. Included among those factors are abandonment or desertion of the child under Indiana Code § 31-19-9-8(a)(1) and failure to communicate under Indiana Code § 31-19-9-8(a)(2).
What is the difference between the two? The most significant difference is that failure to communicate is in the context of a child in the custody of another person. In other words, a custodial parent cannot be said to have failed to communicate with the child as grounds for dispensing with the parent’s consent to the adoption. However, Indiana Code § 31-19-9-8(a)(2) speaks to “a child in the custody of another person”. “Custody” is not defined by Indiana Code § 31-9-2. Therefore, the ordinary definition of custody applies, meaning that a parent with legal custody of child whose child is in the care of another person could lose the right to consent (or object) to the adoption of the child for his or her failure to communicate with the child.
Abandonment, on the other hand, does not only apply in the context of a child in the custody of another person. In other words, a custodial or non-custodial parent may be said to have abandoned or deserted a child. Pursuant to Indiana Code § 31-19-9-8(a)(1), the period of abandonment must last for at least six months immediately preceding the filing of a petition for adoption. Accordingly, if a parent were to leave a child unattended for a weekend or even a few months, that would not be grounds to dispense with the parent’s consent to the child’s adoption on the grounds of abandonment.2
Thus a significant difference between abandonment and failure to communicate is the custody of the child. The consent to adoption of a custodial or non-custodial parent is not necessary if the parent abandons or deserts the child. The consent to adoption of a non-custodial parent is not necessary if the parent fails to communicate with the child.
Another difference is the time frame. To prove abandonment or desertion, abandonment or desertion must be shown for at least six months immediately preceding the filing of a petition for adoption. Failure to communicate must continue for a period of twelve months, but those twelve months do not necessarily have to be immediately preceding the filing of the petition for adoption.
Furthermore, Indiana Code § 31-19-9-8(b), provides: “If a parent has made only token efforts to support or to communicate with the child the court may declare the child abandoned by the parent.”
Basically, abandonment/desertion and failure to communicate get to the same legal concept, specifically that if a person is not acting like a parent, that person cannot prevent the child from being adopted (by withholding their consent) by a person ready, willing, and able to actually parent the child.
1Indiana law recognizes two types of fathers. A “legal” father is a man who is married to the mother of the child or who has established paternity of the child in a court proceeding or by executing a paternity affidavit. A “putative” father is every other man who is, or claims to be, the father of a child. See, Indiana Code § 31-9-2-100, the definition of “putative” father. A putative father is only entitled to notice of the adoption under Indiana Code § 31-19-3 (pre-birth notice) or Indiana Code § 31-19-4 (post-birth notice).
2However, it may be grounds for proving the parent is unfit under Indiana Code § 31-19-9-8(a)(11).