Thursday, December 31, 2009


adoption: an overview

Adoption refers to the act by which an adult formally becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and terminates any legal rights then in existence with the natural parents.

While certain jurisdictions only permit one of the two types of adoptions, other jurisdictions recognize two types of adoptions – open and closed adoptions. An open adoption permits the birth mother to select her child’s adoptive parents. A closed adoption, meanwhile, results in the birth mother relinquishing all rights over the child and allows a state administrative agency to conduct the selection process. Some jurisdictions also permit the parents in an open adoption to maintain their visitation and contact rights.

Most cases in which parental rights are terminated occur because of a consensual forfeiture of those rights by parents. Generally, a parent cannot revoke a consensual forfeiture. The natural parent’s right to have custody of their children has been deemed a fundamental right by the U.S. Supreme Court. See Santosky v. Kramer, 455 U.S. 745 (1982).

Although adoptions have historically fallen within the sphere of state authority, Congress has used its spending power to garner some influence over state adoption programs. Under this program, Congress grants money to the states to carry out their programs if they abide by certain Congressional mandates.

Methods of Adoption
Parents looking to adopt can choose one of two methods– an agency or through independent contact with the biological parents. Both public agencies and private agencies exist for the purpose of facilitating adoptions. States run the public agencies, as a state interest exists in placing parentless children with couples looking to adopt. By the time a public agency becomes involved, the natural parents have already relinquished their rights and therefore lack all control over the process. Public agencies employ a stringent test to determine the suitability of parents looking to adopt. With adoptions through public agencies, adoptive parents do not have the child placed with them until the natural parents have relinquished their rights. Both public and private agencies abide by these practices.

With independent adoptions, the natural parents take on the responsibility for finding suitable adoptive parents. Often, the natural parents will place the child in the prospective adoptive parents’ house for a trial period without the natural parents having relinquished their rights.

Who May Adopt
The U.S. Constitution does not provide a fundamental right to adopt. See Lindley for Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989). Unless statutory authority exists, one may not adopt a child by private agreement unless an enabling statute exists. However, under certain circumstances, a court may find a child to have been “equitably adopted,” and grant the child certain rights that an adopted child otherwise would have.

Statutes determine the requirements regarding who may adopt in a given state. Most states have modeled their adoption statutes upon the Uniform Adoption Act. The Uniform Adoption Act provides that any individual may adopt another individual in an effort to create the legal relationship of child and parent, subject to the adopting individual having reached adulthood.

States vary with regard to factors they consider as disqualifying one’s ability to adopt. Some statutes disqualify unmarried or single individuals. The Uniform Adoption Act does not prohibit the unmarried from adopting. Others disqualify those suffering from physical or mental disabilities. Some states have imposed “reputability requirements.” Under a reputability requirement, individuals with criminal histories or employment instability would not qualify as suitable for adoption.

To proceed, an individual cannot petition for adoption unless the court makes an official finding that the individual is “acceptable” as an adoptive parent. Before an adoption becomes official, the court must pass upon an investigatory report submitted by the state agency that the individual qualifies as “acceptably suitable” for becoming an adoptive parent. These investigatory reports are tremendously detailed, including the petitioners’ religious backgrounds, social history, financial status, moral fitness, mental and physical fitness, and criminal background. After weighing the factors, the agency makes a recommendation, which the court can accept or reject, with the court basing its decision on serving the best interests and welfare of the child.

Many states, including Florida, Nebraska, and Oklahoma have restricted gays and lesbians from adopting children. But because adoption does not constitute a fundamental right, court challenges to the constitutionality of these restrictions have not worked thus far. Legislatures have enacted these statutes upon the premise that child rearing by gays and lesbians would not be in the best interests of the child. Other jurisdictions may only consider sexual orientation as one factor when considering if a parent fits the acceptability requirement.

Procedure for Adoption
An individual wishing to adopt must petition the court to grant adoption, presenting evidence that they have satisfied the necessary statutory elements. After an investigation, the state adoption agency presents its report of the petitioners to the court and makes a recommendation.

When the statute requires their consent, due process accords the natural parents an opportunity to be heard by the court on the matter. If the court cannot find the natural parents, the court must take steps reasonably calculated to notify the parents about the termination proceeding. For situations in which the natural parent cannot or does not want to care for the child, the natural parent’s wishes for the child’s placement receive significant weight from the court.

The petitioner bears the burden of proving by a preponderance of the evidence that adoption is in the child’s best interests. An adoptive parent looking to terminate the biological parents’ natural rights must show the action to be in the child’s best interest by “clear and convincing evidence.”

menu of sourcesFederal MaterialU.S. Constitution and Federal Statutes25 U.S.C., Chapter 21 - Indian Child Welfare Act42 U.S.C. § 620 - Adoption Assistance and Child Welfare Act of 198042 U.S.C., Chapter 67 - Child Abuse Prevention and Treatment and Adoption Reform ActCRS Annotated Constitution
Federal Agency RegulationsCode of Federal Regulations: 45 C.F.R., Part 1356
Federal Judicial DecisionsU.S. Supreme Court: Recent Decisions on Adoptionliibulletin Oral Argument PreviewsU.S. Circuit Courts of Appeals: Recent Decisions on Adoption
State Material
State StatutesUniform Laws (See LII Locator for Uniform Matrimonial, Family, and Health Laws): Interstate Compact on the Adoption of Children (adopted in all states and the District of Columbia)Uniform Adoption Act (1969 version, adopted in Alaska, Arkansas, Montana, North Dakota, and Ohio, and 1994 version not yet adopted in any state) State Adoption Laws
State Judicial DecisionsN.Y. Court of Appeals:
Adoption CasesCommentary from liibulletin-nyAppellate Decisions from Other States
International Material
Conventions and TreatiesConvention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (29 May 93)
Other References
Key Internet SourcesFederal Agencies: Administration for Children and Families of the U.S. Department of Health and Human ServicesUS State Department (International adoption information and guide to regulations of various countries)Get Legal: AdoptionThe ABA Center on Children and the LawABA Section of Family LawAdoption Policy Resource CenterAdoption NetworkAdoption.comNolo Legal Encyclopedia
Useful Offnet (or Subscription - $) SourcesGood Starting Points in Print: Cahn & Hollinger, Families by Law: An Adoption Reader. New York: New York University Press (2004).
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