Adoption

Adoption is the legal process that allows a person to become the legal parent of someone not born to him or her. Although children are the persons who are typically adopted, adults can be adopted as well.

Adoptions follow a strict set of laws, and these laws vary from state to state. Whether the parents adopt through an agency or find a child to adopt on their own, the legal requirements of the state are the same. No child that already has a parent or parents may be adopted until those parental rights are terminated by order of the court. If the parental rights of the natural parents are not terminated, any later adoption is invalid.

CAUTION: States that have short waiting periods between the birth of a child and termination of parental rights are popular places to adopt. Typically, the adoptive parents take the baby home with them; however, they have no legal right to the child until the natural mother’s rights are terminated. In states where termination takes up to a year, losing the child because the mother changes her mind is a wrenching experience.

Any eligible adult may petition the court to adopt a child. Marriage is no longer a requirement, although sexual preference may be a bar in some states. Foster parents may petition the court to legally adopt a child placed in their custody.

Requirements

Laws require a myriad of filings, reports and studies before a child can be adopted. Generally, a social worker must interview the prospective parents and prepare a home study that is filed with the court. Additionally, health, social, educational and genetic history reports are prepared and filed. The adoption cannot be completed until the necessary reports are presented to the court.

SIDEBAR: The adoptive parents’ criminal record, if any, is searched and a criminal history report is prepared.

The court will grant the adoption if the court finds that the adoption is in the best interests of the child at an adoption hearing. Some laws permit the court to terminate the parental rights of the natural parents at the same time that the baby is adopted.

Confidentiality

Laws generally require adoption records to be sealed if the adopting parents request that they be sealed. “Sealing” documents means that no one will have access to the information contained within them and that they will remain confidential.

How do I get my adoption records unsealed so I can locate my birth mother?

You can either file a petition to unseal adoption record or fill out a form with the probate or county court clerk requesting that the file be examined. If your file contains a notice that your birth parent is looking for you, the records will be unsealed. Where a petition is required, you must show the court “good cause” to unseal the records, such as medical necessity.

SIDEBAR: Laws have been enacted in some states that allow adoptees to request and obtain non-identifying information from the adoption records. Additionally, some states, such as Oregon and New Hampshire, have laws that allow adoptees access to their original birth certificate; Alaska and Kansas do not have sealed adoption records. Check your state laws for recent legislation allowing access to adoption records.

SIDEBAR: Under that the Indian Child Welfare Act, when requested, courts must unseal records for American Indian children in order to provide information to the adopted individual necessary to ascertain her tribal affiliation and membership.

Birth Certificates

When a child is adopted, a new birth certificate is issued. The clerk of the court typically sends the adoption order to the bureau or office that issues birth certificates. On receipt of the order, not only is a new birth certificate issued, any records relating to the children prior to the adoption are sealed.

Gestational Agreements

Parties can legally enter into agreements that require a surrogate mother to relinquish her parental rights when she gives birth on another couple’s behalf. The use of these agreements protects couples who cannot have children on their own and who want to use a surrogate to carry their child through the use of an assisted reproductive procedure, such as in vitro fertilization.

The agreement prohibits the use of the gestational mother’s eggs in the assisted reproduction procedure. Additionally, the intended parents must be married. The agreement is an enforceable contract.

TIP: Laws authorizing the use of gestational agreements have not been enacted in all states.

What is an open adoption?

An open adoption generally includes on-going communications between the birth mother (and father) and the adoptive parents. Sometimes, the adoptive parents’ duties to the birth mother are set out in a contract. The provisions might include sending a photograph once a year, regular telephone calls and e-mails, saving all letter and cards to the infant from the birth mother, and having the child meet the birth mother at a certain age. Typically, however, the birth parent and adoptive parents have an informal agreement.

What are “baby broker” laws?

Baby broker laws prohibit unlicensed individuals from placing babies for adoption.

The laws require adoptions to go through licensed agencies; unlicensed persons are “baby brokers” and may be prosecuted for criminal offences.

If the adoption is never finalized, is a baby broker law still violated?

Yes. The laws generally prohibit an unauthorized person from having any significant role in the placement activities. The actual finalization of an adoption is not required for the law to be violated.

TIP: “Significant” placement activities include contacting prospective adoptive parents or natural mothers about the possibility of adoption, attempting to change a mother’s mind when she becomes reluctant to allow the adoption, coordinating the actual transfer of the child from the mother to the adoptive parents and receiving more money than the amount of medical and hospital expenses related to the birth of the child.

Can the natural mother find adoptive parents without breaking baby broker laws?

Yes. The natural mother, her parents or guardian, or other close relative may seek out adoptive parents.

Can an adopted child sue the placement agency if she was placed in an unfit home?

Yes. It may be possible to file a lawsuit against an agency for negligent placement, if the agency did not fulfill its responsibilities to investigate the adoptive parents.

SIDEBAR: Once the adoption is finalized, the placement agency has no duty to continue to supervise, investigate or protect the child. Of course, the placement agency (typically the state’s child protective service agency) has a duty to protect the welfare of a child in foster care prior to adoption.

Can an adoption agency charge a fee for placing a baby?

Yes. A private placement agency may charge for its actual fees and expenses, and is allowed to establish a sliding scale based on the adoptive parents’ gross income. For example, the agency may charge 15% of gross income up to $15,000. The formula varies according to state laws.

Laws prohibit charging fees unrelated to the adoption. Adoption-related fees are typically limited to the mother’s medical and legal expenses, plus other expenses incurred as a result of her pregnancy (maternity clothes, for example). An adoption agency can also charge prospective parents for legal fees the agency incurs, an application fee, the cost of required home studies and reports, the cost of parental training, and the cost of counseling to all the parties involved.

SIDEBAR: There are laws that list allowable birth mother expenses. Payment of the following expenses is generally permitted:

  • living expenses such as rent, food, utilities, and clothing (typically there is maximum such as $1,000 per month);
  • medical expenses including prenatal care, delivery, and other pregnancy-related medical expenses (post pregnancy medical care for a number of weeks is usually allowable);
  • transportation to access medical, legal, counseling and adoption services;
  • legal services related to the termination of parental rights and adoption process;
  • counseling to assure that the mother is aware of her rights and is not being coerced; and
  • expenses relating to educational, vocational, recreational, and religious services up to a certain amount.

What does a birth mother have to pay to give a baby up for adoption?

Nothing. A birth mother is never charged a fee. The adopting parents pay for all her expenses.

SIDEBAR: Paying a birth mother’s expenses is not the same as “purchasing” a baby, which is illegal. Paying the mother a lump sum after the child is born equates to buying the baby. Additionally, “cash up front” is typically considered an illegal payment.

My husband wants to adopt a child and I do not. Can he adopt the child on his own?

No. Since you are his wife, you are required to participate in the adoption. When one of the parties is married, the petition to adopt must include both spouses.

Can a gay couple adopt a child?

Yes. Laws in most states do not prohibit same sex couples from adopting a child. However, in some states the couple may not be permitted to jointly petition the court for an adoption.

SIDEBAR: A gay individual can adopt because unmarried persons are permitted to adopt children in all states. Only Florida prohibits gay, lesbian and bisexual individuals from petitioning for an adoption.

TIP: Adoptions by same-sex parents are also called “co-parent” adoptions or “second-parent” adoptions. Second parent adoptions occur when the partner of an adoptive parent wants to adopt the child as well.

Can a child be “unadopted?”

Since adoption is a legal process, and legal processes can be undone, laws may allow adoptive parents to revoke the adoption. For example, California laws allow an adoption to be annulled if the child has a developmental disability or mental deficiency that existed but was unknown at the time of the adoption, and that is of such magnitude that the child is unsuitable for adoption.

Wrongful Adoption Lawsuits

In recent times, adoptive parents have been successful in suing state and private agencies for placing children with known mental and physical disabilities, the existence of which was purposely withheld from the parents. All states have enacted laws requiring or allowing pertinent medical information concerning the adopted child to be released to the prospective parents.