                   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:
