Guidelines for Legislation

The issue of adoption with contact was addressed in 19995 by a group of experts convened by the Children's Bureau of the U.S. Department of Health and Human Services. In their publication, Guidelines for Public Policy and State Legislation Governing Permanence for Children, the experts recommended that States adopt legislation allowing adoption with contact agreements that included these key provisions:

• Adoption is irrevocable, and the birth parent's voluntary relinquishment may not be set aside, even if the post-adoption agreement is modified, set aside, or parties fail to comply.

• The court may approve the agreement only if all parties, including a child over the age of 12, agree on its provisions, and the court finds the agreement is in the best interest of the child.

• The court may approve post-adoption contact ranging from occasional exchanges of cards, photographs and information to regular personal visits, in whatever level of detail the parties agree to and the court deems appropriate.

• Any party to the agreement may petition the court to modify the agreement, order compliance, or to void the agreement.

• The court may order compliance, modify or void the agreement only if the parties agree or circumstances have changed, and any action is in the best interests of the child.

Statutes Permitting Enforceable Contracts

Approximately(6) 18 States (Arizona, California, Connecticut, Florida, Indiana, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Dakota, Vermont, Washington, and West Virginia) currently have legislation allowing written and enforceable adoption with contact agreements. In many of these States, the statutes incorporate the substance of the language recommended by the Guidelines, while in other States (notably New York and South Dakota),(7) provisions pertaining to the contents and enforcement of the agreements are not specified.

In most of these States, an agreement for adoption with contact can potentially be permitted for any adoptive child as long as the type and frequency of contact is deemed to be in the child's best interest. Some States, such as Connecticut, Nebraska, and New York, limit the application of agreements to children in foster care. Indiana limits enforceable contact agreements to children age two and older. For children under age two, non-enforceable agreements are permitted as long as the type of contact does not include visitation.

Most statutes permit post-adoption contact for birth parents, however, some States also allow other birth relatives, including grandparents, aunts, uncles or siblings, who have significant emotional ties to the child, to be included in the agreement. Minnesota permits foster parents to petition for contact privileges; for Indian children, members of the child's tribe are included among the eligible birth relatives. California, Indiana, Maryland, and Massachusetts have separate provisions for sibling visitation.

All parties wishing to be included in the agreements must agree in writing to all terms, which in most States are subject to court approval. Disputes over compliance, and requests for modification of the terms must also be brought before the court. Five States, Arizona, Connecticut, Louisiana, Minnesota, and Oregon, require parties to participate in mediation before petitions are brought before the court. In no case can disputes over the post-adoption agreement be used as grounds for setting aside an adoption or relinquishment of parental rights.

Laws in Other States

In most other States, the statutes are silent about the issue of post-adoption contact. Approximately seven other States do address the issue, but do not provide for enforceable agreements. For example, Alaska's statute merely states that contact agreements are not prohibited. Nevada allows visitation to any person who had established a legal right to visit the child prior to the adoption.

Maryland allows agreements that have the mutual consent of both the birth and adoptive parents, but has no provision for enforcement. North Carolina also permits agreements by mutual consent, but specifies that they are not enforceable and failure to comply is not grounds to invalidate consent to the adoption. Ohio specifically states that mutual agreements for contact are non-binding and non-enforceable. Missouri and Tennessee leave decisions about contact and visitation with birth relatives to the sole discretion of the adoptive parents.

The Statutes-at-a-Glance listings (next page) summarize specific sections of each State's code. While every attempt has been made to be as complete as possible, additional information on these topics may be in other sections of a State's code as well as in agency regulations, case law, and informal practices and procedures. Readers interested in interpretation of specific statutory provisions within an individual jurisdiction should consult with professionals within the State familiar with the statutes' implementation.

Credits: Child Welfare Information Gateway (http://www.childwelfare.gov)