International Adoption Law
International adoption offers a life-changing opportunity for families looking to expand their families. However, navigating the complexities of foreign country adoption laws can be daunting.
International adoption has several differences from domestic adoption. Domestic adoption involves expanding your family with a child born in the United States. The birth family or the birth mother often plays a significant role in this type of adoption, especially in a private adoption. Domestic adoptions are often open adoptions. Most international adoptions are closed adoptions.
Also, a prospective adoptive parent in a domestic adoption must only comply with U.S. laws. The international adoption process, however, involves compliance with several sets of rules. An intercountry adoption means you have to satisfy three sets of requirements:
- U.S. federal law
- The laws of the child's country of origin
- The laws of your home state
If you are adopting a child from outside the United States, make sure you understand international adoption laws, particularly the laws of the country where you plan to adopt. The following is a summary to help you make the right choices.
International Adoption Laws
Two federal laws govern international adoption in the United States.
- The Hague Convention — an international treaty that took effect in the U.S. in 2008.
- The Immigration and Nationality Act
The Hague Convention
The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) is an international treaty that regulates most intercountry adoptions. It's an agreement among nations to establish safeguards so that the adoption of a child is in the child's best interest.
But the Hague Convention isn't just for children. It also provides safeguards for adoptive parents. Adoption service providers in Hague Convention countries must provide information on fees and policies in their service contracts at the beginning of the adoption process. As a result, most U.S.-based adoption agencies give that information on their websites. Non-convention countries don't have to provide such information.
Because of the safeguards, the adoption process for Hague-compliant countries is complex. There are drawbacks to that complexity. Hague Convention countries often have longer wait times for referrals because of the extra steps necessary to protect against harm such as child trafficking. Adoption costs for Hague-compliant countries are also higher than for non-Hague Convention countries.
More than 100 countries are Hague-compliant.
The agreement was finalized in The Hague, the Netherlands, in 1993. The Hague Convention went into effect for the U.S. adopters in April 2008.
Immigration and Nationality Act
The Immigration and Nationality Act (INA) governs the issuance of visas to nationals of other countries. This includes children adopted abroad or coming to the United States for adoption.
The INA provides different methods for an adopted child to enter the U.S. legally.
One method addresses the situation where adoptive parents have lived abroad with the child they are adopting for at least two years. These parents may get an immigrant visa for the child under the "petition for alien relative" process.
Most adoptive parents cannot spend two years abroad living with the child they plan to adopt. They seek to adopt under the INA's provision granting immigrant classification to adopted children from Hague Convention countries or non-Hague Convention countries. Children adopted into the U.S. via another Hague Convention country are considered "convention adoptees." Children adopted into the U.S. via non-Hague convention countries are considered "orphans." These are separate legal processes and require separate steps to reach approval.
After the parents and the child qualify, the child is issued a visa to travel to the United States.
Laws of Other Countries
Adoptive parents must also meet the legal requirements set by the child's country of origin. Family law for intercountry adoption varies from country to country.
China is a popular choice for adoptive parents, but Chinese law requires a long list of qualifications to be met. According to the U.S. Department of State, prospective adoptive parents seeking to adopt a child from China must satisfy the following standards:
- Residency. China does not have a residency requirement for foreign adoption. But, at least one adoptive parent must travel to China to complete the required documents.
- Age. Adopting parents must be at least 30 years old. Under U.S. law, a parent or parents in a domestic adoption only has to be 25 years old.
- Marriage. Chinese law permits intercountry adoption by married heterosexual couples and single women. China does not consider individuals who have been divorced two or more times. China does not allow lesbian, gay, bisexual, transgender, or same-sex couples to adopt.
- Income. An adopting family's annual income must be at least $10,000 for each family member in the household. This amount includes the adoptee. Married couples must have a net worth of at least $80,000. Single parents must have a net worth of at least $100,000.
- Physical/Mental Health. Prospective adoptive parents must be physically and mentally fit. Fitness includes that an adoptive parent cannot have a Body Mass Index (BMI) of 40 or more. Several conditions are disqualifiers. For example, China does not allow those with HIV, AIDS, and schizophrenia to adopt.
- Criminal history. Generally, China does not allow those with a criminal history to adopt. But applications from those with minor criminal violations will be considered.
On the other hand, Bulgaria has different and fewer adoption requirements. Prospective adoptive parents adopting a child from Bulgaria must meet the following standards:
- Residency. Bulgaria does not have a residency requirement. However, prospective adoptive parents must spend five days with their adoptive child before the orphanage director will release the child.
- Age. A parent must be at least 15 years older than their adoptive child.
- Marriage. Under Bulgarian law, adoptive parents can be a heterosexual married couple or a single person. The law does not specify orientation for single people.
- COVID-19 vaccination requirement. Parents must agree to have the adoptee vaccinated against COVID-19.
International Adoption Laws: The Agencies
In addition to the Hague Convention and the laws of foreign countries, adoptive parents must meet the international adoption standards set by the U.S. Citizenship and Immigration Services (USCIS).
- The eligibility of parents to adopt
- The eligibility of the child to immigrate to the United States
USCIS oversees international adoption requirements, including the following:
- You must be a U.S. citizen.
- You must be at least 25 years old.
- Adoptive parents must have a household income equal to or higher than 125% of the U.S. poverty level for their household size.
- Married couples must jointly adopt the child.
- You must get a home study. An accredited international adoption agency or a licensed social worker can conduct the study.
- You must fulfill other legal requirements. This includes fingerprinting for criminal history background checks.
The State Department
The U.S. Department of State (State Department) also plays a role in international adoption.
The State Department is the designated central authority in the U.S. for intercountry adoption under the Hague Convention. The federal agency creates regulations governing intercountry adoption between the U.S. and other Hague Convention countries. The State Department also sets accreditation requirements for adoption service providers.
In its handling of international adoptions, the State Department can do the following:
- Provide information about international adoption in countries around the world
- Provide general information about U.S. visa requirements for international adoption
- Make inquiries of the U.S. consular section abroad regarding the status of a specific adoption case
- Clarify documentation or other requirements
- Ensure that foreign authorities or courts do not discriminate against U.S. citizens under local law on adoptions
The State Department is not permitted to do the following:
- Become directly involved in the adoption process in another country
- Act as an attorney or represent adoptive parents in court
- Order that an adoption take place or that a visa be issued
Three Types of International Adoption
There are three general processes for adopting a child across international boundaries. The crucial factor is whether the child's country of residence has signed on to the Hague Convention.
- Hague Process — If you are adopting a child residing in a country party to the Hague Adoption Convention, you will use the "Hague Process." Each member nation has a designated central authority responsible for overseeing the process. The State Department is the central authority in the U.S.
- Orphan Process — You will use the "Orphan Process" if you adopt a child from a "non-Hague" country. This process lacks many safeguards that a Hague adoption provides, such as preparing and verifying the child's medical records. This omission can be significant when adopting a child with special needs.
- Immediate Relative Petition — Individuals not qualifying for a Hague or non-Hague adoption will use the "Immediate Relative Process." In this process, an adopted child is considered the child of the adopting parent for immigration purposes if specific requirements are met.
Most intercountry adoptions are Hague-approved adoptions.
Documents Needed/Required Documentation
There are many documents required for international adoption. The most commonly needed forms are:
- Birth certificate of adoptive child (if it's available, which isn't always the case)
- Birth certificate of prospective adoptive parent(s)
- Death certificate(s) of orphan's parent(s), if applicable
- Foreign custody decree
- Passport for the child
Many intercountry adoptions are finalized in the child's country of origin before the child comes to the United States. But, some countries require that adoptions be finalized in the United States. Children enter the United States under the parent's guardianship in those circumstances. As a result, adoptive parents must complete the adoption in state court.
States may have additional requirements even if the adoption was completed in a foreign country. This may involve a process of validation of the foreign decree in the resident state. It may include a "re-adoption" under state law in some states. Some state law provisions address specific steps the adoptive parents must follow to get a state birth certificate for their child.
Post-Adoption Reporting Requirements
Several countries require post-placement reports. The reports focus on the adopted child's progress and welfare. Some countries require the accounts until the child turns 18. Some countries require that the reports be filed for five years.
Get Professional Help Understanding International Adoption Laws
Adopting a child can be a stressful and time-consuming task. If you are adopting internationally, it can be even more complicated. Make sure you get it right. Avoid pitfalls by working with an experienced adoption law attorney licensed in your state.
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