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Legal Aspects of Adoption

The adoption of a child is the most important legal proceeding in which a person can ever engage. As such, proper legal advice is essential. This is true no matter which type of adoption is being pursued.

There are three types of adoption:

    * domestic agency adoption: both public agency adoptions and private agency adoptions
    * domestic independent (non-agency) adoption, and
    * Inter-country adoption: this can be either an agency adoption or an independent adoption, but it is useful to keep it as a separate category since it is unique in many ways.


From a legal point of view, every case must be either an agency adoption or an independent (non-agency) adoption. What makes a case one or the other is the way in which the parental rights pass from the birth parents to the adoptive parents. In an agency case, there are two steps. First, the birth parents' rights are relinquished to an agency. Second, the agency consents to an adoption by a particular adoptive parent or parents. In an independent adoption, there is only one step. The birth parents give consent directly to a particular adoptive parent or parents.

1. Domestic Independent Adoption
In this country, more newborns are placed through independent adoption than through private agency adoption. While it is difficult to determine why so many birth parents now choose independent adoption, they do report some reasons consistently. These reasons include (1) a perception by birth parents that agencies are profit oriented and bureaucratic in their treatment of birth parents, (2) a desire by birth parents to play an active role in the selection of the adoptive parents, and (3) a desire on the part of birth parents for the child to go directly into the physical custody of the adoptive parents rather than into temporary foster care.

In an independent adoption, the birth parents and adoptive parents usually make an initial contact with one another by such means as word of mouth and newspaper advertising. The laws of some states allow individuals who are not licensed as child-placing agencies to match adoptive parents with birth parents. Even if adoptive parents do not use an intermediary, they frequently consult with an attorney when they commence their search for birth parents. That attorney will advise the adoptive parents on ways to search for birth parents and the laws which are applicable in a particular situation.

The applicable law on most points will be the law of the state in which the adoptive parents reside. When the birth parents reside in another state or give birth in another state, it is possible that some aspects of the law of that other state will also apply. Proper legal counsel on these points is essential.

There are certain emotional and financial risks associated with independent adoptions. When birth parents initially agree to place a child for adoption but later change their minds, the adoptive parents undoubtedly suffer emotionally. Even if the child is not yet born when the birth parents change their minds, the adoptive parents have formed emotional ties with the birth mother and the expected child. If the child has already come into the physical custody of the adoptive parents, the emotional trauma will be even greater.

It is rare for the laws of a state to allow a birth parent to give a binding consent to an independent adoption before the birth of the child.

2. Domestic Agency Adoption
Agency adoptions in this country can be accomplished either through a public agency or through a private agency. The main difference between the two is the method by which the parental rights of the birth parents are terminated. In public agency adoptions, the termination is generally involuntary. The precipitating factor is often abuse or neglect of the child by a birth parent, but not necessarily. The event which precipitates the termination may be some other event; but it does not usually involve a voluntary decision by a birth parent to relinquish his or her parental rights.

In the above section on independent adoption, voluntary and involuntary legal methods for terminating the rights of birth parents were discussed. In general, the same legal methods are applicable to agency adoptions except the legal document signed by a birth parent is normally called a relinquishment instead of a consent. As in independent adoptions, it is sometimes necessary to terminate non-participating birth parents by delivering a court order to that birth parent or by placing a notice in a newspaper.

Because of the above, public agency adoption commonly involves older children. Private agency adoption is more likely to involve younger children, even newborns, since a birth parent will usually make a voluntary plan in advance with the agency.

In an agency adoption, it is important to clarify who is being represented by the attorneys who are involved. With respect to the agency attorney, that attorney is ethically prohibited (and prohibited by statute in some states) from providing any legal advice to either the birth parents or the adopting parents. That attorney represents the agency's interests, which are different than and potentially in conflict with the interests of the birth parents and the adoptive parents.

The emotional and financial risks associated with independent adoption were discussed above. In an agency adoption, at least in the traditional model, the emotional risks are eliminated by the child going into foster care and staying there until the legal risk period has passed. In other words, the child does not enter the adoptive parents' home until after the legal rights of the birth parents have been irrevocably terminated. Today, many agencies make what are known as "legal risk" placements which involve a child going into the home of the adoptive parents before the birth parents' legal rights have been terminated. The primary reason for doing this seems to be a desire by the birth parents to avoid foster care and a willingness by the adoptive parents to assume risk in order to experience early bonding with the child.


3. Inter-Country Adoption
When children of another country are adopted by citizens of the United States, the controlling law is the law of the child's country of origin. Normally, the adoptive parents will receive a final decree of adoption granted in the foreign country by the court or other authority which grants such decrees under the foreign country's laws. A few countries have systems which confer legal authority on the adoptive parents to finalize the adoption in the courts or the home country of the adoptive parents.

In either of the above scenarios, the action by the foreign country, which results in making the adoptive parents the legal parents of the child, does not serve to make the child a U.S. citizen. Consequently, a visa must be obtained for the child to enter the United States. In addition, the child must go through the naturalization process in order to become a U.S. Citizen


4. Home Study
After the consent to adoption by the birth parents, the adoptive parents are required to follow court procedures which will lead to a final decree of adoption. Whether accomplished before or after the placement, the courts will require that the adoptive parent undergo a home study.

State law dictates whether an individual social worker, a private licensed child placing agency, or a public social service agency may perform the home study. The process is designed to evaluate the adoptive parents to assure that there is nothing in their homes or backgrounds which would be contrary to the best interests of the child.

If the prospective adoptive parents have something in their background such as a health problem or involvement with law enforcement authorities, the best approach is for the adoptive parents to be totally open and honest during the home study process. It is unlikely that anything in an adoptive parent's background would have as much of a negative effect as would the perception by the home study evaluator that the adoptive parent is not being honest.


5. Conclusion
While adoption is a critically important legal proceeding, prospective adoptive parents need not be alarmed by some of the horror stories in the media. With proper legal advice and careful planning by the adoptive parents, adoption is a wonderful way of building a family.


Adoptions
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