Understanding Adoption Law

State laws and regulations govern adoptions in the United States. Learning the adoption laws in your state, or any state involved with your adoption, can help avoid frustrating situations. Generally speaking adoption law addresses a wide rage of issues. For our purposes, however, we will address a few matters of law which are common to most adoptions. These include:

(1) Court jurisdiction and venue regarding adoption petitions

(2) Requirements for consent to adoption

(3) Legal restriction on who may adopt and who may be adopted

(4) Regulations of adoption expenses

(5) Collecting family information on adopted persons, birth parents, and adoptive parents

(6) Access to Adoption Records

(7) Agreements regarding contact after adoption is final

Court jurisdiction and venue regarding adoption petitions

Adoption is a process for making a child a permanent member of a family other than the child's birth family. This legal process falls under the jurisdiction of a court of law in the State where the adoption occurs.

In each State, different courts are designated to hear specific types of cases. That designation is what is meant by the term "jurisdiction." For example, criminal cases will be tried in a State criminal court. Adoption is a civil procedure, and at the State level, certain civil courts are given jurisdiction over adoption cases. A person who seeks to adopt a child must file his or her petition for adoption with the appropriate court. All 50 States and the District of Columbia specify in their laws one or more types of court that have jurisdiction over adoption cases.

Venue refers to the geographic location of the court that will hear the case. Most States maintain courts of all types located in different counties or districts throughout the State or territory. Petitions for adoption are filed in the type of court that has the appropriate jurisdiction at the location (or venue) that is convenient to the parties involved in the case. In many cases, there is a residency requirement. Venue options include the county where the person seeking to adopt (petitioner) and/or the child to be adopted reside, or where the child placing agency is located.

Requirements for consent to adoption

Consent refers to the agreement by a parent, or a person or agency acting in place of a parent, to relinquish a child for adoption and release all rights and duties with respect to that child. Consent to adoption is regulated by State laws, not by Federal laws, and States differ in the way they regulate consent.

In most States, the consent must be in writing and either witnessed and notarized or executed before a judge or other designated official. State legislatures have developed a range of provisions designed to ensure protection for all involved individuals, including:

• Children (to prevent unnecessary and traumatic separations from their adult caregivers)
• Birth parents (to prevent uninformed, hurried, or coerced decisions)
• Adoptive parents (to prevent anxiety about the legality of the adoption process)

In all States, the birth mother and the birth father (if he has properly established paternity) hold the primary right of consent to adoption of their child. The court may terminate the rights of one or both parents for a variety of reasons, including abandonment, failure to support the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect.

When neither birth parent is available to give consent, the responsibility can fall to another legal entity, such as:

• An agency that has custody of the child
• Any person who has been given custody
• A guardian or guardian ad litem
• The court having jurisdiction over the child
• A close relative of the child
• A "next friend" of the child, who is a responsible adult appointed by the court

In all States, the court may determine that consent of the parent is not needed under specific circumstances, including termination of parental rights, abandonment of the child, failure to support or establish a significant relationship with the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect. An unwed father's consent may not be needed if he has failed to establish his paternity or fails to respond to notice of an adoption proceeding.

Nearly all States and the District of Columbia require that older children give consent to their adoption.

Legal restriction on who may adopt and who may be adopted

In order for an adoption to take place, a person available to be adopted must be placed in the home of a person or persons eligible to adopt.

All States and the District of Columbia have laws that specify which persons are eligible as adopting parents and which persons can be adopted. In addition, all States, the District of Columbia, Puerto Rico, and the territories have laws that designate which persons or entities have the authority to make adoptive placements.

In general, any single adult or a husband and wife jointly can be eligible to adopt. In addition, a stepparent can adopt the birth child of his or her spouse. In approximately 13 States and the District of Columbia, there are no additional conditions specified. In some States, married persons may adopt singly if they are legally separated from their spouse or if their spouse is legally incompetent.

Regulations of adoption expenses

Nearly all States and the District of Columbia have enacted statutes that provide some regulation of the fees and expenses that adoptive parents are expected to pay when arranging an adoptive placement. Some of the fees and expenses that are typically addressed in the statutes are placement costs, such as agency fees; legal and attorney expenses for adoptive and birth parents; and some of the expenses of the birth mother during pregnancy.

Collecting family information on adopted persons, birth parents, and adoptive parents

Requirements for collecting information about persons involved in an adoption vary from State to State. Each State has laws that specify the kinds of information that may be collected and shared among the parties

State laws specify the persons or entities authorized to collect information. In most states, information about the child to be adopted and the child's birth family is compiled by the child-placing agency or the department of social services. In some states, the court may designate another qualified person, such as a social worker or specially trained investigator, to complete the history of the birth family. In a number of states, the child's parent or other person placing the child for adoption is required to submit family information to the court.

Information about the adopting parents is collected as part of the adoption home study or investigation, and in most states, this study is completed by a child-placing agency or the department of social services. Other individuals, such as social workers or private investigators, may also be certified to conduct these investigations.

Generally, information compiled about the child to be adopted includes medical and genetic history, family and social background, mental health history, placement history, and any history of abuse or neglect. Some states are more specific in their requirements and require detailed information on the child, including dental, immunization, and developmental history, as well as any school records. A few states require information on whether the child is eligible for any state or federal adoption assistance.

States generally require information about the birth parents' medical and genetic history, family and social background, mental health history, religious background, ethnic and racial background, and educational level attained. Some states also provide for information to be collected on physical appearance, talents, hobbies, field of occupation, and drugs taken by the mother during pregnancy. In most instances, only non-identifying information is shared with the adopting parents.

Access to Adoption Records

In nearly all states, adoption records are sealed and withheld from public inspection after the adoption is finalized. Most states have instituted procedures by which parties to an adoption may obtain non-identifying and identifying information from an adoption record while still protecting the interests of all parties.

Non-identifying information is generally limited to descriptive details about an adopted person and the adopted person's birth relatives and is provided to the adopting parents at the time of the adoption. Non-identifying information may include the following:

• Date and place of the adopted person's birth
• Age of the birth parents and general physical description, such as eye and hair color
• Race, ethnicity, religion, and medical history of the birth parents
• Educational level of the birth parents and their occupation at the time of the adoption
• Reason for placing the child for adoption
• Existence of other children born to each birth parent

All states have provisions in statute that allow access to non-identifying information by an adoptive parent or a guardian of an adopted person who is still a minor. Nearly all states allow the adopted person to have access to non-identifying information about birth relatives, generally upon written request. The adopted person must be an adult, usually at least 18 years of age, before he or she may access this information. Many states allow birth parents access to non-identifying information. Additionally, a number of states give such access to adult birth siblings. Policies on what information is collected and how that information is maintained and disclosed vary from state to state.

Agreements regarding contact after adoption is final

Post-adoption contact agreements, sometimes referred to as cooperative adoption or open adoption agreements, are arrangements that allow some kind of contact between a child's adoptive family and members of the child's birth family after the child's adoption has been finalized. These arrangements can range from informal, mutual understandings between the birth and adoptive families to written, formal contracts.

Agreements for post-adoption contact or communication have become more prevalent in recent years, due to several factors:

• There is wider recognition of the rights of birth parents to make choices for their children.
• Many adoptions involve older children, such as stepchildren and children adopted from foster care; these children frequently have attachments to one or more birth relatives with whom ongoing contact may be desirable and beneficial.
• Contact or communication with birth relatives can be a resource to adoptive parents for information about their child's medical, social, and cultural history.

In general, state law does not prohibit post-adoption contact or communication. Since adoptive parents have the right to decide who may have contact with their adopted child, they can allow any amount of contact with birth family members, and such contacts often are arranged by mutual understanding without any formal agreement.

A written contractual agreement between the parties to an adoption can clarify the type and frequency of the contact or communication and can provide a mechanism for enforcement of the agreement. A number of states currently have statutes that allow written and enforceable contact agreements. The written agreements specify the type and frequency of contact and are signed by the parties to an adoption prior to finalization.

The modes of contact can range from an exchange of information about the child between adoptive and birth parents; to the exchange of cards, letters, and photos; to personal visits with the child by birth family members.