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Legal Issues of Independent Adoption

National Adoption Information Clearinghouse publishes this as a service to the adoption community, but it can never serve as a replacement for legal advice from a licensed attorney practicing in the field of adoption in the State(s) where both the potential adoptive parent(s) and the child(ren) to be adopted reside. We also cannot guarantee accuracy; changes in State law may have occurred since the research was conducted.

If you are interested in adopting a child, what should you know about adoption laws? In particular, what should you know about the laws affecting independent adoptions, given the extraordinary media attention that contested adoption cases have received in recent years? The Baby Jessica case in Michigan and Iowa, the Baby Richard case in Illinois, and the Baby Pete case in Vermont are three cases of national prominence that shook the confidence of many prospective adoptive parents. These cases all involved birthfathers who took an interest in their children after they had been placed for adoption by their birthmothers, thereby bringing the issue of birthfathers' legal rights to the forefront.

This factsheet examines the issue of birthfathers' legal rights and the changes in adoption laws that are beginning to take place, partially as a result of the three controversial cases. Also, it presents legal issues of agency adoption and compares them with those of independent adoption. In addition, it lists other helpful information available from the National Adoption Information Clearinghouse (NAIC) related to legal issues.

Birthfathers' Legal Rights

The role of birthfathers in adoption proceedings is changing. In the past, birthfathers often did not participate in making adoption plans. Typically, if a man's partner became pregnant and decided on adoption, the child was placed for adoption without his agreement. Now, more men are taking an interest in their nonmarital children. Some want to raise the child, either alone or with their extended family, even if the mother does not want to. Others decide to marry the birthmother and raise the child together. Some men participate fully in the adoption plan, providing complete medical and genetic background information, and enthusiastically take part in a fully disclosed adoption in which they have ongoing contact with the child. Other men do not necessarily want to raise the child or participate in an open adoption, but they do want to have input on the decisions that affect their child. This increased role of birthfathers affects both agency and independent adoptions. In light of the cases that have come to national prominence in the last few years, agency social workers and attorneys as well as attorneys arranging independent adoptions are moving more cautiously when dealing with all parties in adoption proceedings.

Putative Father Registries

One outcome of the controversial contested adoptions is the passage of laws to establish putative father registries in some States that did not already have them. A putative father registry is a vehicle by which a biological father (the "presumed" or "reputed" father) of a child can record his interest in the child. The State is then required to notify the father of legal proceedings that bear on the well-being of his child. To our knowledge, 32 States have laws related to putative father registries. (The Clearinghouse has prepared-and updates annually-a Statutes-At-A-Glance listing of State laws relative to the rights of putative fathers available online at www.calib.com/naic/laws/putative.cfm.)

Debra Ratterman of the American Bar Association Center on Children and the Law in Washington, DC, believes that the New York State putative father legislation is very sound. In her article "Adoption and the Rights of Putative Fathers," published by the Center, she states that this legislation has "survived constitutional scrutiny by the U.S. Supreme Court, [and] that it provides clear criteria for identifying and protecting the rights of nonmarital fathers." ¹

New York has a three-tiered system:

1. Fathers whose rights are constitutionally protected because they have had a relationship with and provided support to the child;
2. Fathers entitled to receive notice of adoption proceedings because they have registered with the putative father registry (but are not automatically entitled to custody);
3. Fathers with no rights because they have done neither-neither provided support nor registered with the registry.

Ratterman believes all States would do well to model legislation on that of New York because the rights of parents and the rights of children (to an uninterrupted adoption) are spelled out so clearly.

Putative father registries are helping to minimize the risks in both agency and independent adoptions. They are not a panacea, because laws can be poorly written and therefore open to challenges and other interpretations. However, they are one tool that can be used to secure permanent homes for children as quickly as possible.

Legal Issues of Agency Adoptions

Role of Agency Workers

Agency adoptions are legal in all 50 States and the District of Columbia. In agency adoptions, adoptive parents and birthparents are guided every step of the way by a knowledgeable social worker on all of the legal and emotional aspects of an adoption. If the agency workers are doing their jobs correctly, they prepare all parties for everything that will take place. Birthparents are counseled about alternatives to adoption. They are told what their legal rights are and which expenses can legally be met by the adoption agency and which cannot. Prospective adoptive parents are also counseled. The social worker discusses various adoption-related issues, those to be dealt with initially and those that might come up later. By interviewing the prospective adoptive parents at length and visiting in the home, the social worker determines if the prospective adoptive parents meet State licensing requirements for adoptive parents, that is, that they can provide a safe, stable, and healthy environment for a child. One particular issue the social worker discusses is the fee, which is established at the beginning. It can be very reassuring to prospective adoptive parents that the agency fee does not increase if a particular placement does not work out because birthparents who were going to place a child decide to parent instead. For the same fee, the agency continues to work with you until an adoption is completed.

In agency adoption, social workers locate the birthparents and mediate any contact between them and the adoptive parents. The agency workers know the adoption laws and have attorneys to advise them. They make sure that the birthparents' parental rights are terminated according to applicable State laws. The social worker also obtains the genetic and health history on a child and the child's birthparents, and can tell you the agency policy regarding disclosure of that information. "Disclosure" in this circumstance refers to providing complete and accurate background information about a child to the person or persons considering adopting that child. The issue of disclosure is the main legal issue in an agency adoption, at the time of placement, and throughout the life of the adoptee. (This topic is discussed in another NAIC factsheet, Providing Background Information to Adoptive Parents.) For example, you may want more information about the birthmother's prenatal care, or in the case of a toddler or preschooler from another country who has been living in an orphanage, more information about the child's health status. Agency workers could tell you that they have done everything they can to obtain that information, and have told you all they know. You must decide whether you feel comfortable with that amount of information. Also, you must consider future access to information. For example, if the birthparents' health status changes and they inform the agency, will the agency inform you? It is a good idea to find out what the agency policy is on this and whether it is within the State disclosure statutes.

Selecting a Reputable Agency

How do you determine if an agency conducts its business reputably and lawfully? (This topic is discussed in another NAIC factsheet, Adoption-Where Do I Start?) One way is to gather information from several agencies, the State licensing and/or adoption specialist, and a variety of adoptive parents. After comparing and contrasting information from several adoption agencies, you will start to differentiate between the agencies that appeal to you and those that do not, ultimately narrowing your choice to one agency. If the agency or its staff has a fairly long history of placing children, if the State adoption specialist and/or licensing agency has not received many complaints about an agency, and if adoptive parent groups and former clients seem satisfied, chances are you will be satisfied, too.

General Issues of Independent Adoptions

Independent adoption is arranged without an agency. Initial contacts are made directly between the pregnant woman and the adoptive parents or by the pregnant woman and an attorney, depending on State law. Independent adoption is legal in all States except Connecticut, Delaware, Massachusetts, and Minnesota. In these States, however, "parties are able to achieve what is, in spirit, an independent adoption: the adoptive parents and birthparents identify each other without intervention by an agency and then arrange for the parental rights to be relinquished through an agency so that the adoption becomes a 'directed agency adoption'." ²

Locating a Birthmother

To initiate an independent adoption, a prospective adoptive parent must first locate a birthmother interested in relinquishing her child. This can be done in several ways. The thirty-four States that allow adoption advertising are listed in the table on the next page. Ads placed in the classified section of local newspapers have proved to be a successful method for bringing birthparents and adoptive parents together. (Not all States allow advertising for birthparents; in fact, some States have passed laws prohibiting advertising.) An adoption attorney can usually advise you on where and how to advertise, or for a fee, you can use a national or regional adoption advertising consultant.

Another way to locate a birthmother is to contact crisis pregnancy centers, obstetricians, school guidance counselors, and friends and colleagues who could lead you to the right person. Typically, you would send them an introductory letter, a photo, and a resume describing your family life, home, jobs, hobbies, and interests.

Psychological Issues

Two positive aspects of independent adoption include the usually shorter time required to locate a child than in agency adoption and the acceptance criteria being those of the birthparents themselves rather than those of agencies, which can sometimes be arbitrary or rigid. The risks, however, are somewhat greater. One fear is the fear of having a birthparent contest the validity of an adoption and suing to regain custody after the adoption has been finalized (the circumstances in the "Baby Richard" case). This possibility has sent some prospective adoptive parents to other countries for their children. They would rather not take a legal risk on a domestic adoption, preferring instead to adopt foreign children who previously lived in an institution, even if they may have fairly serious health, developmental, or learning problems.

A second fear of potential adoptive parents is the birthparents deciding to parent rather than to place their child, within the timeframe allowed by law. (The Clearinghouse provides information on State laws detailing timeframes for executing and revoking consents online at www.calib.com/naic/pubs/l_consent.cfm.) This is different from contesting a finalized adoption. Because adoptive parents may have more interaction with the birth family in an independent adoption than in an agency adoption, they may have made a substantial emotional and financial investment in an adoption that never takes place. Birthparents who considered an agency adoption also may decide to parent their child. Because adoptive parents likely have not had direct contact with the birthparents or the child, their shock may not be as intense. If there has been extensive contact with the birth family and the child, a "fall through," while legal, can be emotionally, not to mention financially, devastating.

STATES PERMITTING ADVERTISING:

STATES THAT DO NOT ALLOW ADVERTISING BY NON-LICENSED PERSONS:

In addition, if it happens after extended treatment for infertility, with its attendant disappointments and expenses, the intensity of a fall through is doubled.

Attorney-led adoptions do not necessarily prepare adoptive parents or birthparents for the feelings that accompany the adoption process or the lifelong issues associated with it. Some States do not require counseling or adoptive home studies before a child is placed through an independent adoption. Adoptive parents may consider this a positive aspect of the process because they would save on the cost of the home study or the birthparents' counseling. But it can become a negative aspect if they receive conflicting advice from friends or relatives on different questions that come up rather than solid advice from an experienced professional counselor. An adoption attorney knows the legal issues but not necessarily the psychological ones.

Financial Considerations

The costs for an independent adoption can be unpredictable and depend on what the law allows in your State or the State from which you will be adopting. In some States, adoptive parents are allowed to pay for a birthmother's reasonable living, medical, and legal expenses. All of these together could run into thousands of dollars, particularly if the birthmother does not have health insurance or is not covered by Medicaid and has complications with the pregnancy, labor, or delivery.

One way to minimize the financial risks in an independent adoption is to decide ahead of time how much you think you can afford to spend on an adoption. Consider purchasing adoption insurance. Perhaps you will decide only to work with a birthmother who has health insurance or is covered by Medicaid, or to adopt in a State in which adoptive parents are not allowed to pay living expenses.

Legal Issues in Independent Adoptions

How do you handle legal questions that come up in the course of an independent adoption? You need an experienced adoption attorney to answer your questions and address other concerns. You should get recommendations of attorneys from friends, relatives, and adoptive parent support groups and also see if the local Bar Association or the Better Business Bureau has ever received complaints about a specific attorney. The following questions should be asked at your first meeting with the attorney.

• How many adoptions have you been involved in?
• How long have you been working in the adoption field?
• With which types of adoptions do you have experience
• What are your fees?
• Do you have references from former clients whom I can talk to?
• Do you work with an experienced adoption counselor, or can you recommend one to guide us and the birthparents through the psychological aspects of this process?

You also might want to discuss some of the following concerns with the attorney.

Preplacement Counseling

Does the attorney think that birthparents should have counseling before the birth and placement of the child, and that it is okay for adoptive parents to cover this expense? Even if counseling for birthparents is not required in your State, we recommend that you suggest it and offer to pay for it. In most of the contested controversial cases, preplacement counseling did not occur.

Future Contact

This is an important issue. The discussion should include the frequency of contact, the kind of contact (for example, face-to-face, correspondence, or telephone), limits surrounding that contact, and access to medical information that may only become known in the future.

Separate Legal Representation for the Birthparents

Even if it is not required in your State, we recommend that separate legal representation be provided to the birthparents, not representation by your attorney. If the birthmother and birthfather are no longer together as a couple, they can each have an attorney to represent their best interests. Although this may cost more, it is the ethical thing to do and may prevent much heartache farther along in the adoption process. If an attorney recommends otherwise, you may want to reconsider using that attorney.

Benefits of a Putative Father Registry

You may decide to adopt only in a State that has a putative father registry. (You can check State statutes regarding the rights of putative fathers in various States online at www.calib.com/naic/laws/putative.cfm.) Otherwise, if the birthfather is not actively participating in the adoption plan, is unidentified, and is not willing to take a paternity test or if the birthmother is not able or willing to name a birthfather, you and your attorney will have to evaluate such circumstances very carefully. These are the kinds of situations that involve the most risk.

Overall, fewer than 1 percent of adoptions are contested. Thousands of adoptions are completed successfully every year. Headlines notwithstanding, with good adoption practice you can minimize the risks of a contested independent adoption.

How NAIC Can Help

NAIC has other information available related to legal issues in adoption. The two factsheets mentioned earlier, Providing Background Information to Adoptive Parents and Adoption-Where Do I Start?, are available at no charge for a single copy.

In the United States today, agency and independent adoption are two paths to adoption. Agency adoptions are legal in all States, and independent adoptions are legal in all but four States (Colorado, Connecticut, Delaware, and Massachusetts). The experiences of friends, acquaintances, and other adoptive parents whom you meet in adoptive parent support groups will help you in your adoption planning, including selecting ethical, experienced agencies and attorneys. Whether you decide on agency or independent adoption, it is important to be familiar with State adoption laws.

Ultimately it will be your own attitudes, values, and beliefs that will determine your path to adoption. This makes sense because after all, these are the same attitudes, values, and beliefs that will guide you in facing any other child-rearing or adoption-related challenges ahead.

© This information is from the National Adoption Information Clearinghouse.