Adoption Law

Deciding whether to adopt a child or place a child up for adoption presents difficult emotional and legal considerations.

This article contains an overview of the adoption process and focuses on the adoption of children. You can find information and tools to help you prepare for the adoption process.

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Deciding whether to adopt a child or place a child up for adoption presents a difficult set of considerations. Knowing the rules for adoption before you enter the adoption process will help ensure that you make the correct decision for everyone involved.

Whether adopting a toddler or a teenager from the United States or abroad, you should know the basics. There is easy-to-understand legal information and resources for prospective adoptive parents, birth mothers, and adoptees. This article explains:

  • Who may adopt
  • Types of adoption prospective adoptive parents can use
  • The adoption process
  • Adoption assistance
  • Post-adoption resources to help families succeed

The Decision To Adopt a Child

As with many of the most difficult decisions, the decision to adopt a child can be the most rewarding. Welcoming a new person into one's heart and life is usually the easy part if the parent(s) are emotionally ready for adoption. Dealing with time-consuming legal requirements and bureaucracy is the hard part.

What Are the Keys To Successful Adoption?

Knowing yourself is the first critical step. Understanding your goals, your financial resources, your energy level, and your needs for work-life balance will be vital to making the decision.

Choosing the right type of adoption is your second most important decision. Every adoption (and parenthood itself) has some risk. Some of these risks differ by type of adoption.

Working with a reputable adoption agency or adoption lawyer is another important aspect. This will usually help the process progress smoothly. If and when things do go wrong, you will have the support you need to weather the challenges.

Who Can Adopt a Child or Teenager?

Generally speaking, any single adult or married couple is eligible to adopt. In some states, a married person can adopt alone if either they are legally separated from their spouse or if their spouse is legally incompetent.

Under some circumstances, stepparents may adopt the birth children of their spouse. Some states have restrictions based on age or residency within the state.

LGBTQ+ couples may face additional resistance when attempting to adopt. Some state laws allow the sexual orientation of prospective parents to be considered. Other states forbid discrimination based on sexual orientation.

Who Can Be Adopted?

States have a variety of rules that guide who may be adopted. All states and territories permit the adoption of a child. Many states permit adoption regardless of the age of the person being adopted. Some states require that the child be under 18 years of age. Other states require that the future parent be a certain number of years older than the adopted person. These age differences range from 10 to 15 years.

Some states restrict the adoption of adults to persons who are disabled. Other states require that the adopting parent and child-to-be-adopted cohabit or establish a parent/child relationship for some time before the adoption petition is filed or granted. This time ranges from months to years, depending on the state.

Types of Adoptions

An essential first step in the adoption process is determining how you want to adopt. There are several types of adoption:

Agency Adoption

Completed with the assistance of an agency.

Private Adoption

This is a private arrangement but still processed by an agency in an "adoption by identification" or by an "independent adoption." It's important to note that not all states permit independent adoptions.

Public Adoption

You can foster to adopt or adopt a child through a public services agency. Usually handled by the locality's Department of Social Services/Department of Family Services/Human Services.

International Adoption

Intercountry adoptions have been quite popular, although they also introduce additional issues of having to comply with U.S. immigration laws and the requirements of your state of residence.

Stepparent Adoption

Some adoptions involve family members. Stepparent adoptions occur when stepparents adopt their stepchildren. Family members may also seek to adopt a grandchild, niece, or nephew due to the death or incapacitation of the biological parents.

Adult Adoption

A rare form of adoption that involves adults. Most adoptions involve children. This type of adoption happens when a person over the age of 18 is adopted.

Choosing the Type of Adoption That's Right For You

Your needs and abilities as an adoptive parent will affect the type of adoption you choose. Young, healthy, married couples will find all types of adoption open to them.

However, older prospective adoptive parents, single people who want to adopt, people with health issues, or same-sex couples may find their options limited by agency or country restrictions.

Independent Adoption 

In an independent adoption, the birth mother (and possibly also the birth father or birth family) chooses the adoptive parent(s). The birth mother may be working with a private adoption agency or a law firm that specializes in private adoptions.

A birth parent may respond to an advertisement placed by prospective parents seeking a child. Or a birth parent may ask a family member or friend to adopt their child.

When the birth mother has an adoption plan and controls the adoption process, they choose who can adopt the child (as long as they successfully complete the home study process). It could be a single parent or a same-sex couple. Birth mothers can also choose a closed adoption or an open adoption.

Open Adoption Basics

 the birth mother or the birth parents choose to have contact with the adoptive family. It's important to note that, despite ongoing contact between the parties, there has still been a termination of parental rights of the biological parents. One advantage of open adoption is the adoptive parents can ask questions of the birth family. One disadvantage of open adoptions is the potential imbalance of power between the adoptive family and the birth family. For example, a young birth mother may not be aware of her options. In many states, all parties to an open adoption must be represented by an attorney.

Closed Adoption Basics

In a closed adoption, everyone's information remains private. The natural and adoptive parents do not know each other. They do not meet before the adoption, and the adoption records are often sealed. One disadvantage of closed adoptions is a lack of information about the birth family's health.

Independent adoption is almost always domestic adoption, though some people work with foreign lawyers to obtain an independent international adoption. Be very careful when vetting the lawyer in this case. Some prospective adoptive parents have found themselves facing criminal charges for buying children.

Private Adoption Agency

Many prospective adoptive parents choose to work with a private adoption agency. Some agencies have very strict requirements: parents need to be of a certain religion, a certain age range, or married. Some do not allow same-sex couples or single people to adopt. Other private adoption agencies have few restrictions for adoptive parents — other than being able to provide a good home.

Some private adoption agencies handle only domestic adoptions. Some specialize in international adoption from certain countries. Some agencies handle both domestic and international adoption. If you are looking for a good agency, ask other adoptive parents for a referral.

County and State Adoption Services

There are children in your state and county who are waiting for parents. The Waiting Child adoption list in each state is often run by the state Department of Human Services and child welfare workers.

On the waiting child list, you will typically find:

  • Older children
  • Sibling groups
  • Special needs children (children with disabilities or medical conditions, for example)

These children may be in the foster care system and available for foster-to-adopt placement. This option lets prospective parents get their feet wet by becoming foster parents first before they decide to adopt. They understand how to parent their foster children before they sign on for a lifelong commitment.

The county and state want to ensure children's needs are met, and adoptions are successful. Waiting children may come with a financial subsidy and adoption support services, especially if they have a difficult medical history or emotional issues.

International Adoption/Intercountry Adoption

The adoption of children from a foreign country has been a popular option for a number of years. Intercountry adoption, however, introduces additional issues of complying with both U.S. and foreign laws on adoption.

This includes the Hague Adoption Convention and the laws of the potential adopted child's country. The United States signed the Hague Convention in 1994. The Hague Convention ensures the same adoption standards apply to different countries. The Hague Convention only applies to countries that have signed the convention.

In the United States, families considering international adoption must fulfill the state and foreign country's requirements. They must also fulfill the immigration laws of the U.S. Citizenship and Immigration Service.

Stepparent Adoption

In a stepparent adoption, a spouse chooses to adopt their spouse's child. The stepparent will need the consent of both of the child's parents. This may need the termination of the parental rights of the other parent. In some states, the child must consent. The youngest age at which children must consent to adoption applies to children between 10 and 14 years of age.

There should be a positive parent-child relationship between the stepparent and the child. After approval, the stepparent has all the rights and responsibilities of a natural parent (birth parent).

Same-Sex Adoption

Legal rights for same-sex couples are expanding. But, same-sex couples who want to adopt may encounter legal difficulties. Not every state guarantees the right of same-sex couples to adopt. For example, some states allow state-licensed adoption agencies to prohibit adoption by same-gender adoptive parents if it conflicts with their religious beliefs. Private adoption agencies in some states may also discriminate based on sexual orientation.

Second-parent adoptions are a consideration in some states. A second-parent adoption is the adoption of a child by the legal parent's partner. Both parents are not married in second-parent adoptions. Same-sex couples should check their state's adoption laws to see if this type of adoption is permitted.

Risks Associated With Domestic and International Adoption

Domestic adoptions aren't subject to widespread legal challenges today, largely because of parental rights lawsuits decided in the past. Birth parents or birth relatives can to try to revoke an adoption, but if you work with a reputable agency or law firm, that is unlikely to occur.

International adoption became increasingly common in the 20th Century. Prospective U.S. parents often turn to Korea, China, South and Central America, Bulgaria, Ethiopia, India, and other nations for adoptable children.

The risk factors for international adoption vary among countries and adoption agencies. The greatest risks are typically these:

  • Changing adoption laws in the country of the child's origin: A country may institute or change the length of a waiting period, or period of residency in the country. It can even choose to end international adoption at any time.
  • Incomplete adoption records: Parents may receive inadequate or incomplete medical history and family history. Even the child's birthdate and age may be inaccurate. Adoptive parents may be unprepared for the child's true needs when they arrive.
  • Child trafficking: There have been a number of adoption scandals over the years involving the abduction from — or sale of — children by their parents. The best way prospective parents can avoid such disasters is to work with a reputable adoption agency or to do a thorough background check on any foreign lawyers you employ.

The Adoption Process Overview

There are a number of steps to the adoption process:

  1. Choosing an agency or adoption law firm and completing an application
  2. Getting an adoption home study completed by a social worker (see below)
  3. Passing a background check
  4. Choosing a child or being chosen by a birth parent
  5. A waiting period
  6. Traveling to a foreign country if you are adopting internationally. There might be a short residency period.
  7. Getting visas for adopted children
  8. Birth of the child (which may be a shared experience with the birth mother in some adoptions)
  9. Termination of parental rights
  10. Birth parent relinquishment of the adoptee
  11. Finalization of the adoption in court

The Home Study

Home studies are a process that helps a social worker or adoption agency check the potential parent's fitness and ability to parent a child.

A home study includes interviews and home visits to check the adoptive parent's or family's suitability and educate and prepare prospective parents. The home study helps place adoptees into a good environment.

After clearance to adopt, the next step is locating a child available for adoption. Licensed adoption agencies are a good source of adoption information and may be able to locate a child available for adoption. Friends, family members, or doctors are other sound sources. Volunteering as a foster parent through your local Department of Human Services is another path to adoption.

Finalizing the Adoption

An adoption court manages and approves adoptions to ensure fulfillment of all legal requirements. After approval, the adopted child's birth certificate will name the adoptive parents as the legal parents.

Adoption Assistance

There are subsidies to help reduce the cost of adoption. Employers, including the U.S. military, offer stipends for those who want to adopt. Some organizations offer grants that can be applied to domestic adoptions as well as international adoptions.

The federal government offers tax credits for qualified adoption expenses. State tax credits may also be available.

States often offer monthly stipends to help with the care and raising of children adopted from foster care.

Post-Adoption Support

About 1%-3% of adoptions fail after they have been finalized. That's a very small number, but it represents a lot of anguish for the adoptive families involved. State child services agencies, private adoption agencies, and fellow adoptive parents all want to help adoptive families to succeed.

There is post-placement support for you and your adopted child, including support groups for parents and adoptees. Some of the support groups are specific to your child's country of origin.

Respite care for adoptive families is also available. Respite care provides caregivers with a temporary break from their responsibilities.

Need More Help? Contact an Attorney Today

The adoption process is complicated. The assistance of an adoption attorney can be helpful. Legal advice is important. An adoption attorney can guide you through the legal process of your adoption. Consider contacting a qualified family law attorney near you today.

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