Family Law Attorney
Types of Adoption
Learn about types of adoption, rules about consent, and how a home study works.
Types of Adoption
There are quite a few different ways to bring a child into your life, or confirm your legal relationship with one, through adoption. Here’s the lowdown on the different ways that adoption can work.
Agency adoptions involve the placement of a child with adoptive parents by a public agency, or by a private agency licensed or regulated by the state.
Public agencies generally place children who have become wards of the state for reasons such as orphanage, abandonment, or abuse. Private agencies are sometimes run by charities or social service organizations. Children placed through private agencies are usually brought to the agency by a parent or parents who have or are expecting a child they want to give up for adoption.
In a private, or independent, adoption, no agency is involved in the adoption. Some independent adoptions involve a direct arrangement between the birth parents and the adoptive parents, while others use an intermediary such as an attorney, doctor, or clergyperson. But for most independent adoptions, whether or not an intermediary is used, an attorney will be needed to take care of the court paperwork.
Most states allow independent adoptions, though many regulate them quite carefully. Independent adoptions are not allowed in Connecticut, Delaware, or Massachusetts.
An “open adoption” is an independent adoption in which the adoptive parents and birth parents have contact during the gestation period and the new parents agree to maintain some contact with the birth parents after the adoption, through letters, photos, or in-person visits.
An identified, or designated, adoption is one in which the adopting parents and the birth mother find each other and then ask an adoption agency to take over the rest of the adoption process. The process is a hybrid of an independent and an agency adoption.
Prospective adoptive parents are spared the waiting lists of agencies by finding the birth parent themselves, but they reap the benefits of the agency’s experience with adoption legalities and its counseling services. Everyone may simply feel more comfortable if an agency is involved. Identified adoptions are available to parents in the states (Connecticut, Delaware, and Massachusetts) that ban independent adoptions.
In an international adoption, the new parents adopt a child who is a citizen of a foreign country. In addition to satisfying the adoption requirements of both the foreign country and the parents’ home state in the U.S., the parents must obtain an immigrant visa for the child through U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). The child will be granted U.S. citizenship automatically upon entering the United States.
Many countries with children available for adoption will not permit adoption by openly gay or lesbian parents; some countries, like China, require the adopting parent to sign an affidavit that he or she is heterosexual. Despite this, many gay and lesbian adoptive parents have successfully completed international adoptions as single parents, with their partners later becoming legal parents through second parent or stepparent adoptions in the United States.
You can adopt a foreign child through an American agency that specializes in international adoptions — or you can adopt directly. Most people use an agency, because direct adoption can be difficult.
In a stepparent adoption, a parent’s new spouse adopts a child the parent had with a previous partner. Stepparent adoption procedures are less cumbersome than agency or independent adoption procedures. The process is quite simple, especially if the child’s other birth parent consents to the adoption. If the other birth parent cannot be found or if he or she refuses to consent to the adoption, there is more paperwork to do and the adoptive parents may need an attorney.
Domestic Partner Adoptions
In California, a new law allows a same-sex domestic partner to adopt the children of his or her partner under stepparent adoption procedures, so that the process is relatively quick and easy. The parties must be registered as domestic partners with the state in order to qualify for these procedures. Similar procedures are used in Vermont for partners in civil unions.
Relative (Kinship) Adoptions
In a relative adoption, also called a kinship adoption, a member of the child’s family steps forward to adopt. Grandparents often adopt their grandchildren if the parents die while the children are minors, or if the parents are unable to take care of the children for other reasons (such as being in jail or on drugs). In most states, these adoptions are easier than non-relative adoptions. If the adopted child has siblings who are not adopted at the same time, kinship adoption procedures usually provide for contact between the siblings after the adoption.
Consent to Adoption
For any adoption to be legal, the birth parents must consent to the adoption (unless their parental rights have been legally terminated for some other reason, such as unfitness).
Most states won’t let birth parents consent to an adoption until after the child is born, and some states require even more time — typically three to four days after the birth — before the parents can sign a consent form. This means that birth parents can legally change their minds about adoption at any point before the birth of the child, because they haven’t yet given their consent to the adoption. Be sure to check your state’s laws. States differ widely on when birth parents can consent and when the consent becomes final.
Even after the birth parents have given their consent and the child has been placed in the adoptive home, many states give birth parents a specified period of time to revoke their consent — in other words, to change their minds about the adoption. In some states this period can be as long as three months — a nerve-wracking time period for the adoptive parents who have begun to care for the child.
This is one of the reasons why birth parents in some states must undergo counseling before giving their consent — their intention to go through with the adoption is explored at an early stage, in the hopes of reducing the likelihood of a change of heart later.
Investigation of Adoptive Parents: The Home Study
All states require adoptive parents to undergo an investigation to make sure that they are fit to raise a child. This investigation is called a home study. Typically, the study is conducted by a state agency or a licensed social worker who examines the adoptive parents’ home life and prepares a report that the court will review before allowing the adoption to take place. The social worker makes a recommendation about whether the adoption should be approved, but a court always makes the final decision.
The social worker will commonly ask about a number of areas considered important to the adoptive parents’ ability to raise a child:
- financial stability
- marital stability
- other children
- career obligations
- physical and mental health, and
- criminal history.
In recent years, the home study has become more than just a method of investigating prospective parents: It serves to educate and inform them as well. The social worker helps to prepare the adoptive parents by discussing issues such as how and when to talk with the child about being adopted, and how to deal with the reaction that friends and family might have to the adoption.
If the social worker ends up writing a negative report that claims the adoption isn’t in the child’s best interests, you may contest the conclusion. Each state has different appeal procedures. Some states provide for a separate procedure, while other states make the appeal part of the adoption hearing.
All adoptions, whether handled by an agency or done independently, must be approved by a court. The adoptive parents must file an adoption petition — basically a request for approval — with the court and go through an adoption hearing.
Before the adoption hearing, anyone who is required to consent to the adoption must receive notice. Usually this includes the biological parents, the adoption agency, the child’s legal representative if a court has appointed one and the child himself if he is old enough (12 to 14 years old in most states). States vary on the particular notice requirements, so check your state’s laws.
A standard adoption petition will generally include this basic information:
- the names, ages, and residence address of the adoptive parents
- the name, age, and legal parentage of the child to be adopted
- the relationship between the adoptive parents and the child to be adopted, such as blood relative or stepparent
- the legal reason that the birthparents’ rights are being terminated (the reason usually being that they consented to the termination)
- a statement that the adoptive parents are the appropriate people to adopt the child, and
- a statement that the adoption is in the child’s best interests.
The written consents of the birthparents or the court order terminating their parental rights may be filed along with the petition. Adoptive parents also often include a request for an official name change for the child.
Adoption Hearing and Order
At the adoption hearing, if the court determines that the adoption is in the child’s best interest, the judge will issue an order approving and finalizing the adoption. This order, often called a final decree of adoption, legalizes the new parent-child relationship, and usually changes the child’s name to the name the adoptive parents have chosen.
If you do not use an agency in your adoption, you will definitely need to hire a lawyer experienced in adoptions. Even if you do use an agency, you may need to hire a lawyer to draft the adoption petition and to represent you at the hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be quite complex and should be handled by someone with experience and expertise. When seeking a lawyer, find out how many adoptions he or she has handled, and whether any of them were contested or developed other complications.
Copyright 2004 Nolo
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