Executive Summary of Adoption Laws

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Executive Summary of Adoption Laws

Persons contemplating adoption have many legal questions. Since adoption is a creature of State law, the answers usually can be found in State statutes, agency regulations, and court opinions. Federal statutory and constitutional law also play a part, in such areas as adoption subsidies, adoption of Native American children, and rights of unwed or "putative" fathers.

While the overall adoption scheme is similar in all States, the fine points frequently differ. This introduction outlines the legal foundation of adoption, describing who can adopt and be adopted, the adoption legal process, and the rules of confidentiality. In addition, it discusses a range of State law variations. For a more complete description of the adoption process in a particular State, see the State-by-State adoption law guides that follow.

The Adoption Participants

The following sections discuss the parties to an adoption and special placement considerations.

Who Can Be Adopted?

In all States, a child may be adopted. All States also permit the adoption of foreign-born children, a growing phenomenon. These adoptions involve yet another type of law: Federal immigration laws and policy, which control the issuance of visas to foreign children. Many States have, by statute, created special procedures for adopting foreign-born children or for recognizing adoptions finalized overseas. A number of U.S. agencies specialize in international adoption.

Who Can Adopt?

Any single adult or a husband and wife together can adopt. Most States allow a person to adopt without his or her spouse if the couple is legally separated or the other spouse is unavailable or unreasonably refuses to consent to the adoption. In some States a minor is permitted to adopt. A few States have special requirements for prospective adoptive parents. For example, there must be a certain age differential between the child and the adoptive parents; the adopting parent must live in the State for a certain period of time before being able to adopt; or the prospective adoptive parents and adoptee must live together for a period of time prior to the adoption.

Relatives and Stepparents

A parent can usually adopt his or her stepchildren without the spouse (the biological parent) joining in the adoption, as long as the spouse consents to the adoption. Some States give special preferences to relatives who wish to adopt. In most States, adoption by "preferred" relatives or stepparents involves a simplified process. Waiting periods, homestudies, and, in some States, even the adoption hearing may be waived.

Placement Preferences

One aspect of adoption law that Federal law does address is interracial or cross-cultural adoption. In 1994, Congress enacted the Multiethnic Placement Act (MEPA), which, among other things, prohibits a federally assisted agency from categorically denying the opportunity for any person to become an adoptive or foster parent solely on the basis of the race, color, or national origin of the adoptive parent or the child. This act was amended in 1996 by the Interethnic Provision (IEP). The capacity of the adoptive parents to meet the child's needs based on the child's background can still be considered in the framework of best interest of the child. Partly in response to this law, a number of States (e.g., Arizona, California, Connecticut, Utah, and Washington) have enacted their own versions of MEPA/IEP.

Consideration of the religious preferences of the birth parents in placement decisions for adoption is still permitted in many states (e.g., Arkansas, Delaware, Florida, Maine, Maryland, Massachusetts, Minnesota, Oregon, and Rhode Island). State laws generally direct that these preferences be honored unless it is not in the child's best interests. In some jurisdictions (e.g., Illinois, New York, U.S. Virgin Islands), even without such parental requests, religious preferences are statutorily recognized.

In some States foster parents receive special preference. Two States (Florida and New Hampshire) specify in their adoption laws that homosexuals may not adopt. In Connecticut, the sexual orientation of the prospective adoptive parent may be considered, but it is not the determining factor in placement.

Who Can Place a Child for Adoption?

Agency Adoption

In every State, a child may be placed with prospective adoptive parents by the public agency responsible for adoptions or by a private agency licensed by the State. The children placed by these agencies either have been voluntarily surrendered to the agency by their parents or have been placed by the court following a termination of parental rights. Some States do not require that a private agency be licensed by the State, only that it follow standards required of licensed agencies. Many States allow agencies licensed outside of their State to place children in their State.

Independent or Private Adoptions

All but a few States (Connecticut, Delaware, and Massachusetts) allow "non agency" placements of children for adoption. These adoptions are often referred to as "private" or "independent." One type of private adoption allowed in almost every State is the 'direct placement" of a child by the biological parent with adoptive parents. Several states, such as Minnesota, have detailed statutory regulation of direct placements in order to protect the birth parents and child. Another type of private placement involves a third-party who serves as an agent either to the biological or adoptive parents. This intermediary, most often an attorney, doctor, or clergyman, brings the biological parents and the adoptive parents together.

The regulation of independent adoptions varies by State. Some State laws are silent on this subject; other States impose special requirements, such as homestudies conducted prior to placement, greater scrutiny of fees, or wider leeway for judges to reject these placements. Such regulations arise from a general belief that these placements are more costly, more likely to unravel, and more subject to unscrupulous conduct by persons seeking to profit from placing children for adoption.

Fees

Because of the concern for "black-market babies," almost every State prohibits agencies and persons from accepting any fees for "finding babies" or "placing a child" for adoption. No person is permitted to be paid, either monetarily or with anything of value, for placing a child for adoption. Some States impose criminal penalties on anyone who violates this law.

On the other hand, every State allows adopting parents to pay "reasonable" fees that are connected specifically with the cost of the adoption services. Most States require a written itemization of fees, such as costs for the child's birth and placement, the birth mother's medical care, the attorney fees, and the adoption services. These "reasonable fees" are usually subject to court approval. Most States do not require a disclosure of fees when a relative or stepparent is adopting.

Advertising

Many States restrict the ability of prospective adoptive parents and birth parents to advertise. To some, advertising is seen as a form of baby selling; to others it is an essential step in the adoption process. State laws vary greatly on this topic. Many States permit licensed agencies to advertise, some allow adoptive and birth parents to advertise, and some allow attorneys and physicians to advertise. In some States, all advertising is prohibited, and in some advertising is a criminal offense.

The Adoption Court Process

Place of Adoption Hearing

Adoption hearings take place in State courts. Generally the hearings occur in the county where the adoptee or the adoptive parents live or where the agency that has custody of the child is located.

The adoption of an out-of-State child may occur in the State of the adoptive parent or placing agency. But, if the adoption involves an unrelated child (or related child being placed by an agency), certain requirements of the Interstate Compact on Placement of Children, in force in every State, must first occur. These requirements seek to safeguard the adoption process. Among other things, the Compact requires that an agency in the State where the adoption is to occur determines that such an adoption is not contrary to the child's interests.

The Petition

The legal steps to an adoption begin with a petition. The information most often required in an adoption petition is:

Identifying information about the adoptive parents (names, ages, address)
The relationship between the adoptive parents and the child to be adopted
The legal reason that the birth parents' parental rights are being terminated
A statement that the adoption is in the child's best interests
A statement that the adoptive parents are appropriate to adopt the child.
Notice

As a general rule, prior notice of the adoption hearing must be given to all persons required to consent to the adoption, unless they have given up their rights to such notice. Many States also require that notice be given to the child to be adopted. The parties given notice are required to respond within a specified time period, usually between 20 and 30 days. The method of giving parties notice varies from State to State. In many States, notice must be given to the individual in person. In some States, notice may go through the mail. If the party cannot be found, or if his or her identity is unknown, notice can be given by publication in a newspaper if statutorily allowed.

Consent

All adoptions are based upon the consent of persons or agencies legally empowered with the care or custody of the child. In most States, the consent must be in writing and either witnessed and notarized or executed before a judge or other designated official. Many State statutes specifically permit a minor parent to consent.

Who must consent will vary by the circumstances of each case. In general, consent to adoption is required by one or a combination of the following persons:

The biological mother
The biological father, if he was married to the mother at the time of conception or birth (In many States, the biological father is recognized if he was married to or attempted to marry the birthmother within 300 days of birth.)
The adoption agency that is responsible for placing the child or the court, if it has custody
The guardian ad litem (person appointed to represent the child's best interest) of an adoptee, if the court has appointed one
The adoptee if of a certain age (usually at least between 12 and 14 years)

A parent or court-appointed guardian of a minor biological parent (in Alabama, Indiana, Michigan, Minnesota, New Hampshire, Oklahoma, and West Virginia).
In many States the court may decide to forego consent from a specific person if the court concludes that doing so is in the best interest of the child.

When to Consent

To prevent undue pressure on pregnant women, all States by statute or case law do not allow consent to an adoption until after the child's birth. Many States impose an additional waiting period, typically 3-4 days after birth, before consent can be given. Rhode Island has a 15-day waiting period. Only Alabama, Hawaii, Washington, and Wisconsin recognize, under certain circumstances, prebirth consents. In a number of States, under certain circumstances, a putative father can give his consent to the adoption before the child is born.

Withdrawal of Consent

In most States, consent to an adoption may be revoked or withdrawn; however, when it may be revoked and for what reasons vary by State. Some States allow revocation up to the time of a final adoption decree, while others set a fixed time period following the consent. Some States permit revocation for any reason; others limit it to situations where a court determines that revocation is in the child's best interest or the original consent was obtained by fraud or duress.

Exceptions to Consent Requirement

There are exceptions to the above list of people who are required to consent. In a majority of States, consent is not required of the following parties:

A biological parent who has deserted or abandoned the child, or who is deceased
A biological parent whose child is not in his or her custody and who has not visited, communicated with, or supported the child for at least one year (six months in some States)
A biological parent who has placed the child with an adoption or child placement agency
A biological parent whose parental rights have been terminated
A biological parent who has been declared to be incompetent
A parent who has failed to respond to requests for his or her consent or who is unreasonably withholding consent
Certain "putative" or unwed fathers (see below).
Rights of Unwed Fathers

The identity of the father of a child born out of wedlock is not always certain. A man may claim to be a child's father or is alleged to be by others. Historically, unless fatherhood was legally established in a paternity action, such "putative" or unwed fathers had few rights with respect to their children. But, since 1972, and following a series of U.S. Supreme Court cases, State laws have changed. Today, unwed fathers may have full rights to have custody of their children and may consent to or veto their adoption. Unlike other fathers, however, they must earn these rights. State laws set forth what actions an unwed father must take. The most common steps are as follows:

Submit one's name to a registry of putative fathers or State registry of vital statistics
Acknowledge the child by signing the birth certificate or by some other act
Act, or attempt to act, like a father, by providing care and support and by communicating with the child
Obtain a court order establishing paternity.
These steps usually must take place prior to the petition for adoption. It is usually too late to seek or exert parental rights once the adoption effort is under way.

In recent years, a number of highly publicized adoption cases involving the late emergence of unwed fathers have captured the attention of the public. Typically, these cases involved an unwed father who, pleading ignorance of the child's birth, seeks to set aside or prevent an adoption. Several States have responded by limiting putative fathers' rights through changes in consent provisions. Others have enacted more sweeping changes. In 1995, for example, Utah enacted a new state law that presumes a father is on notice that a child may be born and an adoption may occur simply if he had a sexual relationship with a woman. Thereafter, actual notice of an adoption proceeding is limited to fathers who take affirmative steps, such as initiating a paternity action.

Investigation

An investigation and homestudy to determine the appropriateness of particular adopting parents are required in every State before an adoption can occur. The exception is that most States do not require an investigation and homestudy if a relative or stepparent is adopting. State adoption laws specify who will conduct the investigation. In most States, a child welfare or social service agency will investigate, but some States leave it up to the court to decide whom to appoint as an investigator.

When an investigation is required, most States do not allow the adoption to take place until the investigation is completed and the court has received the resulting report. If the investigators conclude that the adopting parents are unsuited to adopt, the adoptive parents can contest the report. In some States, there is a separate procedure for contesting the report, but in other States, it is part of the same adoption hearing.

Appeal and Revocation of Adoption Decrees

States have an interest in making adoptions as permanent and final as possible. A final decree of adoption (entered after all legal proceedings and necessary waiting periods are over) may be appealed within the time limits set forth by State law for civil cases. After that time, most States limit the grounds (for example, for fraud, the child's best interest, or jurisdictional defects) for which the decree may be attacked and the time period (usually 1 or 2 years) in which this action can occur.

Recently, attempts by adoptive parents to return custody of mentally ill or behaviorally difficult children to an agency, sometimes years after an adoption, have received national attention. Adoptive parents' rights to revoke an adoption in these situations are being sorted out by the courts. At least two States, California and Kentucky, expressly recognize by statute the right of adoptive parents to take this action, in limited circumstances. At least one State supreme court (Rhode Island) has recognized this right in the absence of a specific State law.

The adoptive parents' right to revoke an adoption should not be confused with an emerging area of potential liability for adoption agencies called "wrongful adoption." In wrongful adoption actions, the adoptive parents do not seek to revoke the adoption, but they do seek monetary damages from the agency that placed the child. Usually, wrongful adoption actions involve a claim that the agency knew, or should have know, that the child was at risk of developing serious medical or behavioral problems and failed to inform the adoptive parents of this fact. Subsequently, the adoptive parents incur significant medical or other expenses to care for these children, and they sue the agency. Courts in numerous States (e.g., Arizona, California, Illinois, Massachusetts, Ohio, Pennsylvania, Minnesota, and Rhode Island) now recognize these actions. Conversely, at least one State, Delaware, grants immunity from liability to persons and agencies acting in good faith under adoption law. In Texas, the law specifically states that an adoption decree cannot be attacked because the health, social, educational, or genetic history of the child or family was not filed.

Confidentiality

Court and Agency Records

In every State, adoption proceedings are confidential and held in a court that is closed to the public or in the judge's chambers. All documents pertaining to the adoption, including the original birth certificate, are sealed and kept as permanent records of the court in a locked file. These documents can be inspected only with court approval. Following an adoption, a new birth certificate is issued with the names of the adoptive parents on it.

Nonidentifying information

In every State, the adoptive parents or adult adoptee can receive limited information that does not identify the biological parents, including the medical and genetic history of the biological parents and information on their social background. Most States allow this information to be released upon request. A few States (e.g., Arkansas) allow this nonidentifying information to be released to either an adult adoptee or an adoptive parent upon a court order only for good cause; for example, if the information is needed for the adoptee's health care. Many States specify that there can be no reference to the fact that the child was born out of wedlock in any part of the adoption record.

Identifying Information

There is an ongoing controversy regarding how to balance two sometimes conflicting interests: the privacy and anonymity interests of the biological parents and the "right-to-know" interest of the adoptee. Presently, States take one of four approaches to the regulation of confidentiality.

Confidential Records Under this approach, used in a small and declining number of States, the original birth certificate and the adoption records are kept sealed by the courts and can be inspected only with court approval, which is given on a very limited basis. Most States require the person requesting access to records to demonstrate sufficient reason for release of the identifying information. Some States define "sufficient reason" more strictly than others. The judge balances the interests of each party: the desire of the adult adoptee for information versus the biological parents' right to privacy. A small number of States with confidential records statutes use intermediaries to search for biological parents. These intermediaries serve as a liaison between the biological parents and the adult adoptee.

Open Records In two States (Alaska and Kansas) an adult adoptee, upon request and with no restrictions, is given access to his or her adoption records or original birth certificate. Oregon and Tennessee have passed similar laws, but in each State legal challenges have deferred implementation of the law.

Search and Consent Roughly a quarter of the States use this approach, whereby an adoption agency or intermediary investigates the location of one party upon the request of the other party who wants identifying information. If the biological parent, when found, does not consent to the release of identifying information, then the adoptee, in some cases, may petition the court to open the records.

Mutual Consent Voluntary Adoption Registries A growing majority of the States have adopted mutual consent voluntary adoption registries. Under these registries, identifying information can be released and meetings arranged only if both adult adoptee and the biological parents agree to it. This approach establishes a central file on a State level where adult adoptees, biological parents, and in some States, adoptive parents and adoptive siblings may voluntarily register their names to give their consent to release identifying information if another party makes a request.

Some State registries maintain lists of siblings and lists of relatives of deceased adult adoptees or of deceased biological parents who have consented to identifying information being released about them. In other States, if the biological parents are deceased, the adoptee can receive information about them, unless the parents specified otherwise while they were alive.

In some States the biological father's use of the registry depends on whether he has legally acknowledged the child and admitted to being the father. In cases where his identity is unknown or his paternity is not formally established, his participation in the registry is not legally required for a match to occur between the adult adoptee and the biological mother and for identifying information to be released.

Few States require individual counseling for each party before actual disclosure to them of the identifying information. Some States not only require the biological parents and adult adoptee to consent, but also require the involvement or consent of the adoptive parents.

Open Adoption

Loosely related to confidentiality is the practice of open adoption, wherein birth parents have post adoption access to or visitation with the child. These contacts can be set forth in an agreement or contract, signed by the birth and adoptive parents and approved by the court, based upon selected criteria and conditions. The "enforceability" of these agreements between birth and adoptive parents varies. A few States by statute (e.g., Indiana, Nebraska, New Mexico, Oregon, Rhode Island, Washington) permit courts to enforce these agreements under limited circumstances. In some States, such as Ohio and Tennessee, these agreements are statutorily allowed, but are nonbinding and unenforceable. In many other states, this area is still regulated by court opinion. For example, in 1996 the Montana Supreme Court ruled that these agreements are enforceable if in the child's best interests.

Adoption Practice

The statutes discussed above are a starting point for determining the practices in your State. Agency practices, even within a State, vary tremendously. While practices cannot be contrary to the law, they may be more specific. For example, while any adult may adopt, some agencies deal only with married couples; while any child may be adopted, certain agencies handle only infants, others only adolescents, others only children with special needs, and so on. Therefore, to gain a full understanding of adoption practice in your State, both the laws and agency practices must be considered.

New Federal Law Developments

On November 19, 1997, the President signed the Adoption and Safe Families Act of 1997 (P.L. 105-89). The law profoundly affects the adoption of foster children, and requires changes in State law. Among other things, the law does the following:

Redefines Reasonable Efforts, Case Plans, and Reviews

The Federal law clarifies that a child's health and safety is the primary consideration and specifies situations where efforts to reunite a family are not required. A child's safety must be addressed in case plans and 6 month reviews of foster care plans. The law also allows for concurrent planning, whereby the agency may work toward reuniting family and seek alternative permanent placement for a child at the same time.

Termination of Parental Rights

Termination of parental rights proceedings must be initiated for children who have been in foster care for 15 of the most recent 22 months and must be commenced upon a child's placement, in cases where reunification efforts are not required.

Notice and Opportunity to Be Heard

At all foster care reviews and hearings, foster parents, preadoptive parents, and relative caregivers must be given notice and an opportunity to be heard.

Earlier, More Decisive Permanency Planning Hearings

Permanency planning hearings must be held within 12 months of child's original placement; the previous Federal requirement was 18 months. At these hearings, a decision must be made to return the child home, initiate a termination of parental rights proceeding, or place the child in another permanent placement.

Limited Time for Reunification Services

A 15-month time limit is placed on reunification services for services provided under Title IV-B of the Social Security Act.

Updated by NAIC, 1999.

This material may be reproduced and distributed without permission; however, appropriate citation must be given to the National Adoption Information Clearinghouse.

For more information, contact the National Adoption Information Clearinghouse at naic@calib.com.

Updated on June 27, 2001 by webmaster@calib.com.


This material has been taken from the National Adoption Information Clearinghouse Web site as reviewed and approved for addition to this site on December 28, 2003.

The National Adoption Information Clearinghouse http://naic.acf.hhs.gov, can be reached toll free at 1-888-251-0075,or by e-mail at: naic@calib.com

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

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