Demystifying Private Adoption

“A year and a day.” These are the words that changed my life forever. My gynecologist informed my partner and I that since we had not conceived after trying for a year and a day, there was a high probability that one or both of us suffered from infertility. After several tests I learned that I was indeed infertile. For years I tried to become pregnant through in vitro fertilization (IVF). After spending nearly $100,000, three IVF attempts, and several miscarriages, my spouse and I decided to explore adoption. Going into it, we had no idea how complex adoption could be and were singularly focused on the reward. We jumped in headfirst and, in the end, became parents to wonderful children and learned a lot about the process along the way.

Adopting a child can be a confusing and mysterious process, even to those of us well-versed in the law. Both authors of this article have adopted children and have had very different experiences creating their families.

People choose adoption for various reasons. Some are not able to conceive, some are disinterested in birthing biological children, some adopt out of necessity, and some have yet other reasons. Adoptive parents, adopted children, and birthparents come from diverse socioeconomic and cultural backgrounds and nearly 135,000 adoptions are finalized each year in the United States. Adoption is a permanent life decision for everyone involved and the end goal for any adoptive parent is the same: to parent a child!

Adoption takes many forms: international adoption, independent private adoption, agency private adoption, stepparent adoption, and foster adoption. International adoption is the process by which children from foreign nations are adopted by United States citizens. International adoptions are governed by the Hauge Convention and children are most frequently adopted from countries such as China, Russia, Guatemala, South Korea, and Ethiopia. More than 70% of children adopted internationally are from one of these five countries. Once the child and their adoptive parents arrive in the U.S., the laws of the state for which the child will become a resident governs the finalization of the adoption process. California Family Code § 8919 requires adoptive parents who have adopted through an intercountry adoption to readopt in their home state. Unfortunately, international adoptions have decreased due to tightening restrictions in various countries known for adoption such as Russia, China, and India. Restrictions have included blanket bans on adoption.

Turning to private adoptions, there are two primary types of domestic private adoptions: Private Placement (Independent) Adoption or Agency Adoption. Private adoptions are governed by the California Family Code; specifically, §§8500 through 9340. Independent adoptions are adoptions arranged without the assistance of an agency. Family Code § 8801 proves the legal blueprint for independent adoptions. In this type of adoption, birth parents select the family they want to adopt their child.

Family Code § 8801 states, in pertinent part:
“(a) The selection of a prospective adoptive parent or parents shall be personally made by the child’s birth parent or parents and may not be delegated to an agent. The act of selection by the birth parent or parents shall be based upon personal knowledge of the prospective adoptive parent or parents.”

Agency Adoption is similar to an independent adoption, but with an adoption agency as a middleman for the process. The agency may be a private adoption agency or the Department of Social Services. Per Family Code § 8700, the child is technically placed with the agency who then places the child with the adoptive parents. In both agency and independent adoptions, the birth parents must be advised of their rights in an in-person meeting and then sign an adoption agreement in the presence of an adoption service provider (see Fam. Code § 8801.3). The adoption agreement must be signed after the birth mother has been discharged from the hospital. Per Family Code § 8814.5, the birth parents then have 30 days to revoke their consent to the adoption. However, that right to revoke can be waived, with such waiver signed in the presence of an adoption service provider.

In either independent or agency adoption, once the adoptive parents are chosen, they must interview with a worker authorized by the Department of Social Services to determine the appropriateness of the adoption. The interview is called the home study, which is held to determine the fitness of the adoptive parents. If all things go well, the adoption will proceed and culminate with a finalization hearing. This hearing is one of the most joyous proceedings over which a judge will preside. At this hearing, the judge signs the adoption order, sealing the initial birth certificate and ordering the issuance of a new birth certificate with the adoptive parents’ names on the document. This process concurrently terminates any parental rights that the birth parents have to the child.

Private placement adoptions, as described herein, represent the ideal adoption, meaning the biological parents of the child have agreed to put their child up for adoption and consent to placement with the child’s adoptive parents. However, there are many situations where the process is more complicated, such as in a situation where a birth parent cannot be found or refuses to relinquish their parental rights.

In the first example, the prospective adoptive parents must prove due diligence in finding the birth parent prior to the hearing. If the court is satisfied with the due diligence, the birth parents’ parental rights can be terminated.

In the second example, if one of the birth parents contests involuntary termination of their parental rights, they have a right to have an attorney appointed to represent their interests. Generally, the case turns on whether the contesting parent is unfit to parent, is not actually the biological parent of the child, or has abandoned the child. Regarding an unfit parent, the court looks at various factors to determine fitness to parent. Disputes over paternity of the contesting birth parent can be resolved by a paternity test. If abandonment is the basis for termination, the court looks to see if one or both birth parent(s) failed to provide support to the child or communicate with the child and/or other birth parent for specific periods of time (see Fam. Code § 7822).

In most cases, once the birth mother is discharged from the hospital, the birth parents sign a document confirming the adoption and irrevocably waiving their right to revoke consent. Once this document is signed, the balance of the process is generally a rubber stamp. However, rubber stamping is not always the case, and a party may seek litigation to terminate the adoption or the process. Litigation is a very lengthy, cumbersome, emotional, and expensive process that has a lasting effect on the families involved.

While the adoption process can be stressful and complicated, it generally turns into one of the most satisfying experiences a person has with the legal system. If you are looking to start the adoption process, finding a qualified adoption agency and/or adoption attorney will help minimize the emotional nature of the process. They can help prepare the birth parents for their own challenges, which can minimize issues over relinquishment after the birth of the child. Those early days after the birth of the child can be extremely stressful and emotional and having qualified professionals in place to ensure a smooth transition can be the difference between a successful adoption and a failed one. The very best conclusion to the process is calling a child your very own!