o Massachusetts is an "agency" state. This means that a private adoption between parties is not allowed. Rather, in virtually every adoption there is a requirement that either DSS or a licensed agency be involved and approve the adoption.
o Most adoptions will be filed in the Probate and Family Court of the county where the adoptive parents reside.
Who Can Adopt?
o In Massachusetts, anyone who has reached the age of majority (which is eighteen) can adopt another person who is younger than him or her, unless the person to be adopted is the spouse, brother, sister, uncle, or aunt of the person seeking to adopt.
o The child to be adopted must have lived with you for at least six months. Under some circumstances, this requirement can be waived.
o Same-sex couples and unmarried couples of the opposite sex may adopt.
o You may not adopt a child under the age of fourteen unless you are in one of the following situations:
1. The child has been placed with you by DCF or by an agency authorized by DCF for that purpose;
2. You are a blood relative of the child;
3. You are a stepparent of the child;
4. You were named in the will by the deceased parent or parents as the guardian or adoptive parent; or
5. You are part of an unmarried couple (same-sex or opposite), one of whom is already the legal parents of the child through birth or adoption.
o Adoptions usually being in one of two ways:
1. An agency or DCF will approve a family for adoption and then place a child with them. In these cases, DCF or the agency will usually do a home study and initiate the necessary steps to formalize the adoption; or
2. A person begins to care for a child who was not born to them and then decides to adopt the child. Such a person can file a petition for adoption if they have met all of the necessary requirements.
o There are certain people who must consent in writing to the adoption:
1. The child to be adopted if he/she is over the age of twelve;
2. The spouse of the child to be adopted;
3. The lawful parents or surviving parent of the child to be adopted; and
4. The mother only if the child was born out of wedlock.
? There still might be a requirement to give notice to the father.
o The written consent, known as "the surrender," must be signed before a notary and two witnesses, one of whom should be chosen by the person signing the surrender.
o If you are trying to adopt a newborn child, the surrender cannot be signed by the birth parent until at least the fourth calendar day after the birth of the child.
o If the child you are adopting was born out of wedlock and the father has not signed a consent, you must find out if the father has filed a declaration seeking to assert the rights of fatherhood or a paternal responsibility claim.
Lack of Consent
o If the lawful parents of the child to be adopted have not consented to the adoption, the agency or DCF will then ask the judge assigned to the adoption to determine that it is in the best interest of the child not to require the consent of the lawful parents.
o If the parents, lawful or otherwise, have not signed a surrender, the court will issue a citation and order you to give notice of the adoption proceeding to the lawful parents, as well as to the unknown or unnamed father.
Children Born Out of Wedlock
o If you are trying to adopt a child born out of wedlock and the birth mother has signed a surrender releasing the child for adoption, you must determine whether the birth father has filed a parental responsibility claim.
o If there is a parental responsibility claim, DCF will notify the birth father by registered mail that the child is in the process of being adopted.
o After notice has been given, the birth parent(s) may indicate to the court that he or she objects to the child being adopted. It will be up to the court to determine if it is the child's best interest to be adopted. This will be determined by trial in which the petitioner will have to prove that the legal parent or parents are unfit and it is in the child's best interest to be adopted by petitioner.
o A home study is an investigation by DCF or another licensed agency that determines whether you should be able to adopt the child.
o A home study is required for all adoptions of children under the age of fourteen unless the child is already the child of one of the petitioners--in other words, in stepparent or co-parent adoptions.
o You may not need a home study if the child you intend to adopt is a blood relative or the child's deceased parent named you as the proposed guardian or adoptive parent in their will.
Adoption of Tammy, 416 Mass. 205
o "Joint Petitioners" (Same-sex couples and unmarried couples of the opposite sex) may adopt.
o The SJC concluded that "the Probate Court has jurisdiction to enter a decree on a joint adoption petition brought by the two petitioners when the judge has found that joint adoption is in the subject child's best interests.
Papers to be Filed
o The Petition for Adoption
o Affidavit of Petitioner for Adoption
o Birth Certificate of Child to be Adopted
o Marriage Certificate of Petitioner, if applicable
o Divorce Judgment of Petitioner, if applicable
o CARI Record Check (CP2)
o Home Study Report, if applicable
o Affidavit Disclosing Care and Custody Proceedings
o Affidavit from DSS Regarding a Search of the Parental Responsibility Claims
o Federal and Central Registers of Missing Children Search Request
o Surrender Forms
o Judgments from Other Legal Proceedings, if applicable
o Affidavit of Indige
o If necessary, the court will appoint a GAL.
o The court will issue the Petitioner a citation, which is the legal document issued by the court to notify any parents who have not signed a surrender or have not had their rights terminated that an adoption petition has been filed.
o The citation will instruct as to what type of notice is necessary.
o When the hearing is scheduled, both the prospective adoptive parent(s) and the child should attend.
o At the hearing, which is usually in the judge's office or chambers, the judge will review all the papers and approve the adoption.
o Sometime later, the court will issue a decree of adoption from the court. The decree will usually be sent to the local entity that records births and then a birth certificate for your child will be issued indicating that you are the child's parent. The child's original birth certificate will be sealed.
After the Hearing
o Once the court has granted the adoption, the Petitioner is the child's lawful parent.
o The child's birth parents no longer have any relation to the child.
o Unless there is an open adoption agreement, the birth parents will not be able to see the child after the adoption.
o Such an agreement allows for the birth parents to continue a relationship with the child or children after the adoption is final, which is known as an open adoption.
Necessitating a Lawyer
o While there are some cases where a petitioner can get by without a lawyer, specifically those where a stepparent is involved, most of the time having a lawyer involved in the process is advisable.
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