Who May Adopt: Overview
Adoption is a great way to expand a family, although it is a complex legal process. Adoptions are an issue for state governments. Adoption laws vary from state to state.
Prospective adoptive parents must meet specific requirements to adopt before they become an adopted child's legal parents.
Below is a brief overview of some basic guidelines for who may adopt a child.
Adoption is a legal process. Before placing a child in an adoptive family, there are many steps adoptive parents take. Pre-placement prospective parents attend orientations and complete a home study. Social workers collect background information and visit the prospective parents' homes during the home study. After the home study, the adoptive parents are eligible for placement.
Types of Adoption
Parents can choose from several types of adoption. The type of adoption will determine much of the adoption process.
In a private adoption (or independent adoption), the biological parents pick their child's parents. The birth family can use an adoption agency, but this is not a requirement. Open adoption is another choice. Adopted children have access to their birth parent's history in an open adoption. This access is helpful if the adopted child needs a medical history. In closed adoptions, the court seals the adoption records after the finalization of the adoption.
Although many licensed adoption agencies cater to specific groups, there are only two types of agencies. The first is a private adoption agency. Private agencies charge a fee and provide many adoption services. They can walk the birth mother and the prospective parents through the adoption process.
Public Adoption Agencies
Public adoption agencies are part of the child welfare system or a local social services department. The adoption process with public agencies is different than with private agencies. First, the children are older and wards of the state in the foster care system. Often, child abuse is a reason these children enter the foster care system. Foster parents often adopt children if parental rights are severed.
Many states offer adoption assistance to encourage the adoption of children with special needs. Adoption assistance includes monthly payments to help adoptive parents care for a special needs child.
After a court approves the adoption, the adoption case is closed. The adoptive parents can ask their local department of human services for a new birth certificate. The new certificate will include the adoptee's new name.
Who May Adopt: General Requirements
Single adults or a married couple can adopt. A stepparent may also adopt their spouse's child. Most courts are more interested in protecting a child's well-being. Approximately 17 states and the District of Columbia don't specify extra conditions.
In these six states, you must be at least 18 years old to adopt:
- New Jersey
These four states set the age at 21:
You must be at least 25 in Idaho to adopt, or alternatively, an adult 15 years (or more) older than the child.
A few states allow you to adopt under certain circumstances if you're a minor. For example, when you're a minor married to an adult adoptive parent. You may also adopt as a minor if you are the unmarried birth parent of the child.
Some states say you must be a certain number of years older than the adopted child. In the following six states, you must be at least ten years older than the child:
- New Jersey
- South Dakota
In Puerto Rico, you must be at least 14 years older than the child. In Idaho, you must be at least 25 years old or 15 years older than the child to be adopted.
In most stepparent adoptions, children over 10 must consent to the adoption.
You must be a state resident to adopt in approximately 17 states. Your legal residence is the location of your permanent or primary home. States vary on how long you must be a resident before you can adopt. The required residency period ranges from 60 days to one year, depending on the state.
Some states have exceptions to the residency rules. For example, a nonresident in South Carolina and Indiana may adopt a child with special needs.
Domestic residency requirements apply to domestic adoption. They do not apply to international adoptions. Individual countries determine their requirements for intercountry adoption.
Determining whether you can adopt starts with understanding your state's adoption laws. Your age and residency are critical criteria no matter where you live. But other requirements and restrictions may apply. The following is a sampling of state adoption requirements:
In California, you must be 10 years older than the child. But this rule doesn't apply if you're one of the following:
- First cousin
The court must also determine whether the adoption is in the child's best interest.
You can adopt if you're an unmarried adult in Florida. If you're married, your spouse must join in the adoption. But this requirement doesn't apply if your spouse is the child's parent and consents. The court can also excuse your spouse's failure to join in the adoption.
To adopt in Ohio, you can be any of the following:
- An unmarried adult
- An unmarried minor parent of the child
- Husband and wife (at least one of whom is an adult), unless legally separated or under certain other circumstances
Anyone may adopt in Pennsylvania.
Any adult may adopt in Texas. If you're married, your spouse must join unless one of you is the child's parent.
Indian Child Welfare Act
The purpose of the Indian Child Welfare Act (ICWA) is to ensure the placement of Native American children in homes that reflect their culture and values. Under the ICWA, public agencies must look for Native American family members or foster parents for Native American children.
Native American nations have a long history with the removal of Native children from their tribes. Given the cultural considerations, such placements are in the child's best interests.
Gay and Lesbian Adoption
Before 2017, most state laws were silent on the issue of adoption by gay and lesbian individuals. Under the Supreme Court ruling in Pavan v. Smith, all states have to treat same-sex couples the same as opposite-sex couples in issuing birth certificates.
Before the Pavan ruling, Florida and Mississippi prohibited adoption by homosexuals. Utah barred adoption by persons who were cohabiting but not legally married unless the individual was a relative of the child or a recognized placement under the Indian Child Welfare Act. Utah law still indicates a preference for couples to be legally married with some exceptions. However, as same-sex marriage is legal in all states, gay married couples and heterosexual married couples are treated equally now in Utah.
Can You Adopt a Child? Let an Attorney Help Your Family
Adoption laws and requirements vary from state to state. The Child Welfare Information Gateway offers comprehensive information on adoption. This information is not legal advice. Anyone considering adoption should seek legal advice. Get help from a family law attorney who specializes in adoption to clarify your state's adoption process and requirements.
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