Adoption Eligibility: Who Can Adopt and Who Can Be Adopted

Adoption eligibility laws impact several adoption scenarios. For example:

• You’re a legal guardian and want to adopt the child.
• You're a foster parent and want to adopt your foster child, but the biological parents refuse to terminate their parental rights.
• You’re an adult who wants to adopt another adult.
• You want to adopt an older child or teenager.

Regardless of the scenario, the first element you'll address in the process is the eligibility of the adoptive parent and adoptee.

This article breaks down adoption eligibility. First, you’ll learn who can adopt. Then, you’ll learn who can be adopted.

How Adoption Eligibility Is Determined

The legal process for the adoption of a child is similar throughout the country. However, adoption laws vary by state. Minnesota's adoption laws are different than South Carolina's, for example. And, in the case of international adoptions, the laws vary from country to country. In addition, some agencies may apply more restrictive criteria when seeking prospective adoptive parents than others.

But, a few general guidelines apply in most instances. Just remember the differences if you want to adopt outside of your state or the U.S.

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 may become eligible for placement.

Choosing the Type 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: private and public.

Working With Private Adoption Agencies

Private agencies charge a fee and provide many adoption services. They can walk the birth mother and the prospective parents through the adoption process.

Working With 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.

Child abuse, neglect, or substance abuse are often reasons these children enter the foster care system. Foster parents often adopt children if parental rights are terminated.

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.

Post-Placement

After a family 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.

How Old Do I Have To Be To Adopt?

In these six states, you must be at least 18 years old to adopt:

• Kentucky
• Louisiana
• Montana
• New Jersey
• Tennessee
• Washington

These four states set the minimum age to adopt at 21 years old:

• Colorado
• Delaware
• Georgia
• Oklahoma

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 10 years older than the child:

• California
• Georgia
• Nevada
• New Jersey
• South Dakota
• Utah

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.

Residency Requirements for 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:

California

In California, you must be 10 years older than the child. But this rule doesn't apply if you're one of the following:

• Stepparent
• Sister
• Brother
• Aunt
• Uncle
• First cousin

The court must also determine whether the adoption is in the child's best interest.

Florida

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.

Ohio

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

Pennsylvania

Anyone may adopt in Pennsylvania.

Texas

Any adult may adopt in Texas. If you're married, your spouse must join unless one of you is the child's parent.

The 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 Adoptive Parent Eligibility

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 homosexual applicants.

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. But, as same-sex marriage is legal in all states, same-sex married couples and heterosexual married couples are treated equally now in Utah.

Adoption Eligibility Checklist

The checklist below can be a good starting point to see whether you're in a position to adopt a child. As you read through each statement, check all that apply. Your adoption attorney can review your responses with you and help you determine the best route for making an addition to your family.

_____ I am eighteen years old or older. The age limits vary from state to state and from country to country. Some countries base their age restrictions on the difference between the child's and the parent's age.

_____ I have saved enough money to cover the costs of adoption. Adoptions can be costly, and saving in advance can be prudent. But it is not the only way to fund an adoption. Many people borrow from their retirement savings or against the equity in their homes. Some receive loans from family members. Sometimes, a church will sponsor an adoption for one of its parishioners.

Employers may also offer adoption benefits. The adoption tax credit can offset some or all of the financial burden accompanying the adoption process. Some adoptions, like those involving special needs children or foster care adoptions, can be achieved for a lower cost or no cost.

_____ I earn enough money to cover the expenses of raising a child. Income is an important consideration. This is especially true in single-parent adoptions and those involving two parents, if one intends to stop working after the child's adoption.

_____ My employment is stable. This concern may be relevant to determining financial stability and a general finding of responsibility and maturity. Prospective adoptive parents must be able to provide their children with a stable home environment.

_____ I am in good health. Rules regarding specific disabilities are relaxed, but you must prove that you have a reasonable life expectancy and can manage the physical demands of child care.

_____ My home is clean and safe and can accommodate the needs of a child. You do not need to live in a palace to qualify to adopt. A modest home or apartment is acceptable as long as it will provide a safe environment and room for the child to play, explore, and grow.

To ensure your home is this type of nurturing environment, all prospective adoptive parents must undergo a home study in their state before they are approved to proceed forward with the adoption.

_____ I do not have a criminal record. Minor infractions, like unpaid parking tickets, are generally of no consequence (even though they may require a written explanation). But serious charges on your criminal background are of more significant concern. This is especially true for child-related offenses.

If you have past due child support, that alone would not disqualify you. The court will use the “best interests of the child" standard. They will consider the child's welfare and well-being. Previous child abuse charges will likely disqualify you as an adoptive parent. The adoption program will conduct background checks to verify this information.

_____ I am a U.S. citizen. This fact is relevant depending on the type of adoption you are seeking. For example, suppose you want to adopt a child from another country and then bring the child back to the United States to live. You must also be at least 25 years of age if you're unmarried. If you are married, you and your spouse must jointly adopt the child. Your spouse must also be a citizen or they must have legal status in the country.

There are other initial requirements. You must meet the eligibility requirements under federal law and the appropriate state laws.

Additional factors may be a necessary part of the home study process and background check conducted by specific agencies, countries, or birth parents. These other factors include:

• Religion
• Fertility status or infertility
• Educational background

For example, the birth mother and birth father may prefer that a married couple raise their baby. Or the birth family wants an adoptive family to have things in common with them. But they do not have general significance.

The most important qualification to be an adoptive parent is the hardest to quantify: your capacity to love and nurture the adopted child.

Who Is Eligible To Be Adopted?

The answer to this question depends on where the adoption occurs. Individual states regulate who is eligible for adoptions within their borders. State laws define adoptable children and adults differently across the country.

Children and adults can be adopted if they meet legal requirements. The type of adoption affects the adoption process, including whether someone is eligible to be adopted.

General Requirements for an Adopted Child

The state's adoption laws set requirements like the following examples:

• The child must be legally free for adoption (as defined below) in Connecticut, Montana, and American Samoa.

• The child must be in the state when the parties file the adoption petition in Arizona, Texas, Wyoming, and the U.S. Virgin Islands, among others.

• Iowa requires the child to have lived in the prospective adoptive parent's home for at least 180 days. This requirement may be waived where the petitioner is a relative of the child or stepparent.

Prospective parents must show that the adoption is in the best interests of the child.

What Does “Legally Free for Adoption” Mean?

This legal phrase means the biological parents have relinquished their parental rights or their rights have been involuntarily terminated. If a child’s birth parents no longer have legal rights and custody of the child, someone else can seek those rights through a court process. Often, that person is a foster parent who wants to adopt once the child becomes legally free for adoption.

State Age Requirements for Adoptive Children

All states allow adults to adopt minor children (under 18 years of age). Some states have specific age requirements. Some examples of age requirements include the following:

• American Samoa allows parties to petition the court for the adoption of persons over 18 years of age. However, adoptees must also be under 21 years of age. In this situation, laws pertaining to the adoption of a child will apply.​

• The adoptee must be younger than the adoptive parent in Massachusetts.

• In Nevada, the adoptee must be at least 10 years younger than the adoptive parent unless the adoptive parent and child are related as described in the Code.

Is a Child Adoptable as Long as the Birth Parent Consents?

Parental consent can sometimes be a factor, but it does not guarantee an adoption by itself. You can only adopt a child by completing the legal adoption process. Regardless of the biological parents’ permission, adoptive parents must also prove their own eligibility. Also, note that the birth parent’s consent is irrelevant if they no longer have parental rights.

Do Foreign Children Need a Visa for Intercountry Adoptions?

Yes, but a child who doesn’t yet have a U.S. visa may receive one through the adoption process. Children don’t need a preexisting visa because international adoptions involve specific immigration processes.

Adopting a child from a foreign country is more complicated than a domestic adoption. There are two types of international adoptions: Hague adoptions and orphan adoptions. Each type has different child eligibility requirements.

The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention) governs most international adoptions. Prospective parents with U.S. Citizenship follow Convention rules. These rules include using adoption agencies approved by the U.S. Department of State.

Eligible prospective parents fill out Form I-800 with the U.S. Citizenship and Immigration Services (USCIS) to verify that the child is eligible to be adopted in the United States. The visa application process for the child can begin after getting Form I-800 approval.

Can an Abused Child Be Adopted?

Yes, if the abuse report and investigation lead to the child’s permanent removal from their home, they might qualify for adoption. Not all child abuse cases lead to a permanent adoption. Some cases only require temporary foster care or placement with a relative.

Which Factors Don’t Influence an Adoptee’s Eligibility?

A child’s legal eligibility for adoption does not depend on their behavioral background, the origin/birth family’s economic status, their special needs, or other such personal factors. Those factors do not exclude a child from finding a home. Yet, some of those factors may indicate the best adoptive placement for the child.

Minor adoptees face much less scrutiny than prospective parents in the adoption process. States aim to give every child a home, regardless of their background and needs. States use rigorous home studies and other checks to ensure the future home is suitable and safe.

How To Find an Eligible Child To Adopt

If you want to add a member to your family, adoption services can help you match with an eligible adoptee. The Child Welfare Information Gateway, a resource from the federal government, can help you locate an agency and social worker who can assist with placement.

Independent adoptions are another option. These private adoptions do not involve an adoption agency. However, finding an eligible child, sometimes even before birth, may be more difficult. Some states ban the use of advertising to find a child independently. Adoptive and biological parents also need to take special steps — without the help of adoption services — to ensure the child is legally eligible.

Can Adults Be Adopted?

Yes. Eligibility for adoption does not stop at 18. Adult adoption occurs when one adult adopts another adult with consent or other qualifying circumstances.

Adoptive parents must meet state requirements to adopt an adult. These requirements usually differ from those for the adoption of children. For example, West Virginia and Wisconsin require the adoptive parent of an adult to be a resident of the state.

Can Only Disabled Adults Be Adopted?

No, some states allow adult adoptions in other cases. An adult’s eligibility depends on the specific state laws.

For example, Ohio permits adult adoption if the person is totally or permanently disabled or determined to have an intellectual disability. An adult can also be adopted in Ohio if, as a minor, they were a stepchild or foster child of their adoptive parent and they consent.

In Texas, an adult who seeks to adopt another adult must be a resident of the state. If they are married, then both spouses must join in the petition to adopt. The adoptee must consent to the adoption.

Forming an Adoptive Relationship With an Adult

Some states only allow adult adoptions if a familial relationship exists between the adoptee and the adoptive family. This type of relationship must be distinct from a romantic or sexual relationship under the law.

In Idaho, the parties must have a sustained parental relationship over a specified period.

In Illinois, the adoptee must either be related to the petitioner as described in the code or have resided in the petitioner's home for more than two continuous years before the commencement of the adoption.​

Adoption Eligibility Questions? Let an Attorney Help Your Family

Ensuring a child or adult is eligible for adoption is critical to a successful adoption. A local, experienced adoption attorney can answer questions about eligibility. They can also give you legal advice for the adoption process and related family law issues.

You may be a stepparent preparing for a stepparent adoption. Your adoptee could be from another country. Or you're nervous about the adoption home study. Whatever the situation, there are many steps in the process you will have to take before the finalization of the adoption.

An adoption attorney can guide you through the steps of your adoption journey. Legal advice can also help you plan for what happens after the adoption proceedings.