Private Adoption’s Emotional and Legal Issues
Adoption involves loss and grief, and complicated joy. There’s a lot at stake when things don’t work out and even more so when they do. The role of the adoption attorney is to help the parties think about the adoption in these terms, looking to the future, respecting vulnerabilities and building trust. What follows is a brief overview of some of the emotional and legal issues involved in a private adoption.
In an open adoption, the birth parents and adoptive parents know each other’s identities and agree to maintain contact. Research shows that this openness benefits everyone. Adoptive parents get to learn more about their child’s genetic heritage, and their cultural and medical history. The birth parents get to watch their child grow and thrive, which helps validate their difficult choice and ideally, mitigates the grief and loss they will be coping with over the years, some for the rest of their lives. Adoptees benefit from knowing critical pieces of their life story, where they came from, their biological roots and the existence of siblings. Having just basic information can be hugely helpful in demystifying an adoptee’s life story.
Most open adoptions involve a contact agreement between the parties. In California, this agreement is enforceable when it’s in writing and filed with the court. The agreement outlines the type of contact the parties will have in the future, when it will happen and how. The value in these agreements is that they put expectations in writing. The challenge in them is that birth parents might use agreement negotiations to maintain a sense of control over the adoption, or they might have unrealistic expectations of what adoptive parents can commit to. The best adoption attorneys will work hard to mediate vulnerabilities on both sides and will be honest and ethical about what each side can give.
The Roles of an Adoption Attorney vs. an Adoption Agency
Adoptive parents have options when deciding whom to work with on their adoption. They should choose professionals who share their philosophy on adoption. One option is to work with an adoption attorney, who may actively seek out birth mothers on behalf of his or her clients. When an adoption situation is found, the attorney can then do any of the following: coordinate the home study, terminate birth parent rights, negotiate the contact agreement, arrange for birth parent counseling, comply with the Indian Child Welfare Act (ICWA), sort out conflict of law questions if the birth mother lives out of state, disburse financial assistance to the birth mother if she needs it and prepare the adoptive parents for the finalization hearing, where they are declared the legal parents.
Prospective adoptive parents can also work with a private agency. The agency educates the adoptive parents, conducts a full home study to pre-approve adoptive parents, and then identifies potential birth mothers to match with their pre-approved families. The agency takes the birth parents’ relinquishments or birth father waivers, satisfies ICWA, does post-placement follow up visits, prepares the final report for the court approving the adoption and directs the family to the proper forms they need to file for their final hearing. Many agencies work with hundreds of families at a time and may not have the ability to provide the same hands-on service as a smaller organization.
Terminating Parental Rights
One of the biggest challenges in any adoption is terminating the rights of birth parents so the adoption can be finalized. California law has specific requirements about when and how a birth mother may sign her consent. Generally, this doesn’t happen until after she is discharged from the hospital. Once she has signed the consent, the birth mother has several days to change her mind (up to 30 days unless she waives this right), and after this period has passed, her consent is binding. Her parental rights aren’t legally terminated, however, until the adoption is finalized and parental rights are established with the adoptive parents.
California law permits birth fathers to sign paperwork before or after the baby is born. There are several options for terminating birth father rights, and the rights of all possible fathers must be terminated. California has two types of fathers, presumed and alleged. A presumed father is generally someone who is married to the birth mother or whose name appears on the child’s birth certificate.
If a presumed father refuses to sign any paperwork at any time, his rights must be terminated by court action. However, if an alleged father (essentially anyone who is not a presumed father) refuses to sign paperwork, his rights can be terminated based on notice. This notice requirement puts the responsibility on the alleged father to file a court action to establish parental rights. If he fails to do so, his rights can be terminated without further notice to him.
It’s important to strategize how to handle a particular birth father. Many are ready to sign paperwork if they are treated with compassion and respect, and some just need to be heard and given the opportunity to be part of the process. Many birth fathers are actively involved in an adoption plan, but not always. Some feel trapped and powerless when faced with the news of an unplanned pregnancy. They get angry; they deny paternity; they avoid service; they say the birth mother lied and said she had an abortion. They come out of the woodwork.
Nothing is worse than getting a phone call from a man who says that he’s going to fight to parent his estranged wife’s child even though he knows he isn’t the father. This call can come in months after the baby is born. In order to be ready for these situations, it is critical to get as much information about potential birth fathers as possible (all self-reported by the birth mother). The questions you ask the birth mother about the baby’s father might not be nearly as important as when and how you ask.
Adoption laws vary from state to state, and if the birth mother lives out of state, you must comply with that state’s adoption laws and with the Interstate Compact on the Placement of Children (ICPC). The laws range widely from state to state on a variety of issues, and adoptive parents can’t leave that state until they’ve cleared ICPC. Understanding and completing the reams of paperwork required by each state is critical to getting adoptive parents home quickly. Long delays are usually a result of submitting incomplete documents.
Balancing Everyone’s Interests
Adoption attorneys should strive to remember, as we work hard to navigate the legalities involved in completing an adoption, that there is a child involved whose life trajectory will change forever, and that we are working with individuals who have put their futures in our hands. The best adoption attorney will work hard to act in the best interests of everyone involved because that is what makes a successful adoption.