ADOPTION LAW IN THE STATE OF MAINE
What is adoption? Adoption is a legal procedure which allows a person, with Court approval, to become a member of a family other than that into which he or she was born. It creates a legal status between a child and his or her parents which reinforces both emotional security and the child’s legal rights. Adoption laws and procedures in Maine attempt to balance the interests of the child, the birth parents and the adoptive parents.
When a child is adopted, his or her ties with one or both of his or her birth parents (and their relatives) are permanently severed. Once those relationships are terminated, the birth parent(s) ordinarily lose all legal right to see the child and to remain informed of his or her whereabouts.
Adoptive parents have the same obligations to an adopted child as to a child born to them. In the event of a divorce between the adoptive parents, for example, the same obligation to pay child support applies to both adopted and birth children. Adoption allows Social Security payments and other payments to an adoptee during their minority should one of the adoptive parents die. One of the most practical reasons to adopt a child is to be able to provide workplace benefits to the child, such as medical and dental insurance.
Who may adopt a child? Maine law allows married couples acting together, unmarried partners, and unmarried persons acting alone to petition the Probate Court. The prospective adoptive parents and the child may be Maine residents or nonresidents. Whether or not one member of a married couple is the biological parent of a child, both the husband and the wife must join in the adoption petition.
How are adoptable children located? Children adopted through the Maine Courts may have been placed with the adoptive parents by the Maine Department of Health and Human Services (DHHS) or by a licensed adoption agency prior to the commencement of legal proceedings. In the case of "private" or "independent" adoptions, the adoptive parents may have received the child directly from a birth parent or other relative without direct state or agency involvement in the placement. Prospective adoptive parents who locate a child without the assistance of an agency or DHHS generally locate an available child by word-of-mouth, through friends, relatives, attorneys or physicians. State law regulates payment of expenses on behalf of a biological mother and her child by prospective adoptive parents. Sometimes children from overseas are located for adoption, but the practice is becoming increasingly expensive and difficult.
Adoption agencies and DHHS are obligated to follow the state statutes and regulations governing adoptions. Each of them may also have policies and procedures of their own. It is suggested that prospective adoptive parents contact DHHS and one or more of the various private adoption agencies directly to obtain information regarding eligibility for adoption, availability of children, requirements, fees, policies and procedures. Before an adoption is granted involving DHHS or an adoption agency, a report must be made to and approved by the Court detailing expenses paid by the adoptive parents, and the adoptive parents will be required to reimburse at least a portion of those expenses. Home agencies will allow a newborn infant to be released from the hospital after birth to prospective adoptive parents, provided the adoptive parents have first obtained foster-care licensing.
Who must consent to an adoption and who must be given legal notice of the adoption? Ordinarily, both biological parents of a child, or persons having the legal custody of a child when there are no living parents, must consent to the adoption. In certain instances, such as when the child's mother is unmarried, and the child's father is incapable of being identified and/or located, only the mother's consent may be required. If a child is 14 years of age or older, the child must also consent to the adoption. Notice given either in hand or by publication of a notice in a newspaper will usually be required to an unknown or putative birth, and to a legal father who is not actually the biological father.
In some situations, a biological parent may attempt to prevent an adoption by withholding consent. When this occurs, the adoptive parents can ask the Probate Court to terminate the non-consenting parent's parental rights, and allow the adoption to proceed without consent. Though rare, this process can be lengthy and expensive if the matter is actually tried before a judge. The Probate Court has the authority to terminate parental rights only in cases where the biological parent's neglect, non-support or abandonment of the child are clear and it is in the best interest of the child to terminate the parental rights.
What is the legal procedure for adoption? The Court procedure for adoption is commenced with the submission of an adoption petition and numerous supporting documents to the Probate Court in the county where the adoptive parents or the child reside, where the child was born, or where the placing agency is located. If neither of the adoptive parents is related by blood to the child, Maine law requires that the Court obtain a home study report conducted by DHHS or by a Iicensed adoption agency prior to granting the adoption. Sometimes the Court will waive this requirement and sometimes the adoptive parents must pay for a private home study. The Court may order a home study even in cases where a child is being adopted by a relative, although it is not required to do so. For placements which were made by an agency or by DHHS, the home study will have been previously completed as part of the placement process. Any petitioner seeking to adopt a child who is not the biological parent of the child must submit to a state and federal criminal background check and must provide fingerprints. Information obtained by the investigation is confidential and may be reviewed by the petitioner.
The adoptive parents may, but need not, include in the adoptive petition a request that the child's name be changed. DHHS and private agencies will provide the adopting parents with all known medical and genetic information for the child.
Although in some states there is a mandatory waiting period following the birth of a child before a birth parent may consent to an adoption, no such waiting period is required by Maine law. Some Probate Courts as a matter of local practice impose a 14 day waiting period. There is a mandatory three day waiting period between the time the consenting parent appears before a Judge of Probate and the date the consent becomes irrevocable.
A Probate Court may grant an adoption once all necessary documentation, consents, investigative reports and the home study report have been submitted. Prior to the hearing the Judge reviews documents in the file, determines that all necessary submissions have been made, determines that the proposed adoption complies with Maine law and is in the best interest of the child, and determines the fitness and propriety of the adoption. In considering the best interests of the child, the Court will consider the love, affection and emotional ties existing between the adoptee and the adopting persons, the capacity of the adoptive parents to provide the love and guidance to meet the needs of the child, and the capacity of the adoptive parents to provide the child with food, shelter, clothing and other material needs, education, permanence and medical care. Depending upon Court case loads and scheduling procedures, and the specifics of the particular case, and how much work was performed in preparation for the adoption, the final hearing on an independent adoption could be scheduled as early as a few weeks after placement. Generally the process takes three to six months. Most agency adoptions are subject to a post-placement waiting period of at least six months and in practice, private adoptions may also take about that long. In cases involving DHHS placement, the Court may require that a child live with the adoptive parents for up to one year before the adoption is granted.
The judge signs a Court decree known as the "Adoption Decree" and the Court also issues a Certificate of Adoption to the family. If a name change was requested, it is ordinarily granted and confirmed on these documents, effective immediately. Oftentimes the Decree contains a special entry to preserve the adoptee’s rights to inherit from the birth parents and their kin.
Ordinarily among the documents submitted in conjunction with an adoption petition is a request for modification of the child's birth record. Once the adoption is granted, the Probate Curt sends the form requesting modification of the birth record to the Bureau of Vital Statistics in the state where the child was born. A new birth certificate is then issued which generally is identical to the birth certificate which would have been issued for the child had the adoptive parents been that child's biological parents at birth.
Granting of the adoption establishes the legal relationship of parent and child between the adoptive parents and the adopted child and ordinarily terminates all rights, duties and other legal consequences of the relationship between that child and his or her birth parents. Parental rights of a birth parent who joins in his or her spouse's adoption of the birth parent's biological child arc not, of course, terminated by that adoption.
“Open adoptions" in which the biological parents are given either information or access to the child, at the sole discretion of the adoptive parents, are generally disfavored due to the many legal complications which may eventually ensue, and any contract regarding an open adoption is legally unenforceable.
Created in conjunction with, and published with the permission of, the Maine Lawyer Referral and Information Service.
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