THE ATTORNEYGENERAL
OF TEXAS
PRlCE DANTIEL
ATTORNEYGENEllAL
May 11, 1948
Hon. John H. Winters Opinion No. V-568
Executive Director
Department of Public Welfare Re: The necessity for re-
Austin, Texas leases from both natural
parents in order to adopt
a child whose parents are
divorced.
Dear Sir:
Your letter requesting an opinion upon the above subject
matter presents the following concrete questions:
‘“1. In cases of divoxced parents, if the court or-
der granting custody of the child to one parent gives
full custody and does not mention the other parent as
having the right to visit the child or does not require
maintenance or support from him, is the parental re-
lease as provided for in Section b of Article 4ba rt-
quired of the parent who does not have custody?
“2. If you answer the first question in the ntga-
tivt, then would the decision be the same if the court
order of custody gives the parent, who is not given
custody, the right to visit the child at stipulated times
or requires him to contribute to the maintenance and
support of the child? *’
Section b of Article 4ba, Vernon’s Texas Civil Statutes
provides, in part, as follows:
““Sec. 6, - Consent of parents, exceptions. -Rx-
cept as otherwise amended in this Section, no adoption
shall be permitted except with the written consent of
the living parents of a child; provided, however, that
if a living parent or parents shall voluntarily abandon
and desert a child sought to be adopted, for a period
of two (2) years, and shall have left such child to the
cart, custody, control and management of other per-
sons, and such parent or parenats so abandoning and
deserting such child shall not have contributed to the
support of such child during such period of two (2)
years, then in such event it &all not be necessary to
Hon. John H. Winters, Page 2 (V-568)
obtain the written consent of the living parent or
parents in such default, and in such cases adop-
tion shall be permitted on the written consent of
the Judge of the Juvenile Court of the county of
such child’s residence, or if there be no Juvenile
Court, then on the written consent of the Judge of
the County Court of the county of such child’s res-
idence m”
This section further provides:
61
0 0 a Consent shall not be required OS parents
whose parental rights have been terminated by
order of the Juvenile Court or other Court of
competent jurisdiction: provided, however, that
in. such cases adoption shall be permitted only on
consent of the superintendent of the home or school,
or of the individual to whom the cart, custody, or
guardianship of such child has been transferred by
a Juvenile Court or other Court of competent juris-
diction. ~ I”
This statute clearly contemplates that the public policy
of the State is to require the written consent of both living parents
of a child as a condition precedent to its adoption, with exceptions
only as specified therein. The language is emphatic to that end.
The two exceptions therein specified are (a) where the
parent has voluntarily abandoned and deserted the child and (b)
where a parent’s parental ri,ghts have been terminated by order
of the Juvenile Court or other court of competent jurisdiction.
The mere silence of the order of divorce of the parents
upon the question of custody and control of the child is not within
the statutory exceptions. Neither is the order of the court grant-
ing custody of the child to one of the parents without mentioning
the other parent, either with respect to visitation or maintenance
and support fpom him, within the statutory exceptions. Nor again,
would an order giving to the parent s a divided or part-time custody
with right of visitation bring this situation within the statutory ex-
ceptions. Such custodial orders are far short in legal effect of the
statutory exceptions of voluntary abandonment or judicially termi-
nated parental rights bytheothw
petent jurisdiction.
You say in your letter “This Department has been con-
struing the above provisions to mean that the release of par.ental
rights is essential in all adoption cases except in those casts where
the child sought to be adopted has been abandoned for a period of two
Hon. John H. Winters, Page 3 (V-568)
.yearr: as specified in the Paw or the parental rights,have been ter-
minated by a court of competent jurisdiction.“’ Your Department”s
rulfngs have been proper and in accordance with the statute quoted,
We are -upported in thi:? conclusion by prior opinion V-57
of this office,
SUMMARY
In cases of divorced parents, where the court
order grants custody of a child to one parent and does
not mention the other as having the right of visitation,
or does not require maintenance or support from him,
the parental release under the adoption statute (Art.
46a, sec. 6) is nevertheless required to authorize adop-
tion.
The same requirement is made in those cases
where the court order gives custody to one parent and
the right of visitation to the other parent, or requires
such other parent to contribute to the maintenance and
support of the child.
Yours very truly,
ATTORNEYGENERALOFTEXAS
Assistant
OS/wb
APPROVED: