Skip to main content

Adoption

Adoption means taking on the legal rights and responsibilities of the biological parent. Adoption can be done either domestically or internationally.

Zachary C Ashby | Oct 11, 2019

Overview of the Adoption process

What is adoption? Adoption is the legal process whereby a child becomes a member of the family for all legal purposes. Adoption is a product of statutory law and has ancient historical roots. Among the Romans, adoption occurred in order to grant favors and create heirs among Roman families--think Ben Hur. Adoption remained a legal process primarily among adults until the nineteenth century. Child adoption really started in the United States and our legal system has developed the model for the rest of the world. When a child is adopted, the rights of any natural parents are terminated and new rights of parenthood are created. An adopting parent must be willing to accept the duty to raise and care for the child as his or her own, recognizing that an adopted child will have all the rights of inheritance as any natural child. Legally speaking, an adopted child is no different than a natural child. First step: pre-placement reports The first step in any adoption is placement into the home. Adoption commonly occurs in four ways: 1) a step-parent adoption, 2) adoption of a family member (niece/nephew, grandchild, cousin, brother/sister), 3) adoption of a non-family member, or 4) an adult adoption. With a step-parent adoption, one of the child's natural parents chooses placement. Because of the legal assumption that a fit parent makes choices that are in the best interests of their child, all that is required is that the natural parent be married to the potential adoptive parent. With the adoption of a family member or non-family member, a child must be placed in the home first. Often, this is done through the state. The state is responsible for ensuring that the placement is in the best interests of the child. It will make sure to create a pre-placement report. Foster parents are often screened to ensure the child will be safe and protected. If the adoption is through an agency, the adoption agency will have a state-certified social worker perform a pre-placement report. As long as the potential adoptive parents have a clean background, the child can be placed in their home. With adult adoptions, it is much simpler. Adults may be adopted at any time. The only test is that the adults are aware of what they are doing and competent to make the decision. These kinds of adoptions are often done to cement emotional bonds forged in childhood or to ensure a family connection of a close friend. Filing and service of petitions After placement, the next step will be to file the correct petitions. In many adoptions, there are two phases: 1) ending the parent-child relationship of a natural parent and 2) creating a new relationship with the adoptive parent. Each step can be the subject of its own petition. In Washington, you can combine both petitions into one. Separate petitions are most commonly seen when the state has taken charge of a child. Otherwise, it is more common to combine a petition for termination and adoption into one filing. The petition, summons, and any supporting documents are all filed together. Among the supporting documents will be any consent forms of natural parents, relinquishment statements, and the pre-placement report. After the documents are filed, they must all be served on all parties. This will include all natural parents (unless they have waived the right to notice), all adoptive parents, and any involved government agencies. Service must be according to Court Rule 4, but there are also special rules if service is not possible that allow for service by alternate means. Ending parental relationship There are two ways to end the parental relationship of a natural parent can be terminated: 1) voluntarily and 2) involuntarily. Voluntary termination occurs when a parent believes their child should be adopted because he or she is unable to provide the care that the child needs. It can also be done to end child support payments that continue to accrue when one parent has no contact with the child and does not desire any future contact. Voluntary termination is termed relinquishment. The Relinquishing parent must sign a declaration stating that relinquishment is voluntary and acknowledges they have a right to retract relinquishment before their rights are terminated. The relinquishment must also be signed under oath. Involuntary termination occurs in all other instances. This usually means that a trial will occur. The basis for termination is a refusal to perform basic parenting duties for an extended period. The refusal must be voluntary and willful. The parent seeking termination must also show that it is in the child's best interest to terminate the parent-child relationship. Once proven, the Court will enter an order terminating the natural parent's rights. Open adoption agreements For parents that voluntarily relinquish their child for adoption. An open adoption agreement is possible and enforceable. Under an open adoption, the natural parent will still have some rights to see their child. These rights will not be at the same level as parental rights. That means that a parent, at any time, can forbid contact if it is in the child's best interests. But open adoptions allow for natural parents to remain in contact with children they have given up and support them emotionally as they grow up. Adoption hearing The second phase is the adoption hearing itself. Before the adoption hearing, you must have completed a post-placement report and file it with the court. As long as the report is good--and they usually are unless there are criminal convictions or other reasons that call into question the safety of a child--the adoption can proceed. At the hearing, the adoptive parent will be put under oath and asked to answer some basic questions. Often, if the child is old enough, he or she may be put under oath, as well. These hearings are usually very informal and friendly. It is one of the only times a judge gets to make a decision in which all people present leave happy. After the officical adoption decree is signed, there may be an opportunity for pictures with the judge and any family members who are present. Birth Certificate It will take several weeks, but after the final Adoption Decree has been filed. The clerk of the court will process forms that will update the child's birth certificate with their state of birth. The adoptive parents will then receive their child's new birth certificate to use for identification purposes.

Keith B Hofmann | Sep 11, 2019

Important Topics in Adoption

Domestic v. International The difference between these two types of adoptions and the experience for waiting parents can vary greatly. Domestic adoptions are done by statute in New Jersey under the 1994 Adoption Act. This act requires “the best interest of the child” to be the paramount guide post. Placement is made through private or public agencies assisting the adoptive parents to locate and effect the adoption, or through the state foster care system and Department of Child Protection and Placement (previously known as “DYFS”). International adoption varies by the law of the foreign country. The United States has recently seen a decrease in American families adopting internationally due to changes in foreign law-making foreign adoption costlier and more difficult. This change has been attributed to the rise of the middle class in areas like South America and Asia. New Jersey law provides that an adopting parent is not required to file an adoption petition for a foreign adoption in New Jersey if (1) the child was adopted under the law of the foreign country, and (2) the adoption has been verified by the granting of an IR-3 immigrant visa by the U.S. Citizenship and Immigration Service. Absent Neglect or Mental Illness, Each Birthparent Must Voluntarily Relinquish Their Parental Rights In situations where a parent voluntarily chooses to place a child for adoption, both birth parents must be provided written notice and a right to be heard regarding the adoption of their child. If the whereabouts of one birthparent is unknown, New Jersey law requires proof that all efforts were made to identify and locate the missing birthparent. Adoption varies by State as to the specific requirements needed. Once a missing birthparent is located, a form of surrender must be admitted with the courts providing proof that the birthparent relinquishes the custody of the child and voluntarily terminates their rights to raise and care for the child. Birthparents Have the Most Control Over Domestic Adoptions Birthparents have a fundamental constitutional right to raise their biological children. In order for a child to be available for adoption, either (1) the birthparents must voluntarily relinquish their parenting rights to the child, or (2) a family court determines the birthparents are unfit to raise the child due to mental illness, neglect, or forsaken their parental duties. Adult Adoption Less well known is the fact that adults may also be adopted. Adult adoption states that the court shall permit an unmarried person of full age, or a couple with both parties consenting, to adopt an adult person if the court is satisfied the adopting parents are of good moral character and reputable standing in the community, and the adoption was to the advantage and benefit of the person to be adopted. An Adopted Child Is A Forever Child A common fear among parents and families considering adoption is that the adopted child may not feel like their own. Although this may be a valid fear, the experience of raising and caring for a child makes them your own. The initial fears about attachment fade, making how you got the child irrelevant and offering a needy child a forever home and creating a family that never seemed possible without adoption.

Maya Shulman | Jul 1, 2019

U.S. State Department Surrogacy Citizenship Position Not in Best Interest of Family Bond

Cross Border Issues in Family Law The global economy has created more cross-border marital dissolution, child custody, adoption and now surrogacy issues than ever before. I am particularly interested in developing law, and my agenda is to ensure decisions are made with the best interests of the family as the priority. Different Opinions on Surrogacy Issues The U.S. State Department opinion differs from mine, however, in its application of a law passed long before fertility treatments, surrogacy, sperm donors and same-sex marriage that determines citizenship born to Americans overseas through a noncitizen surrogate. Notably, the State Department decisions adversely impact children born to married same-sex couples. A heterosexual married couple with children -- even one in which one partner is a foreign national -- would not typically be asked to prove a genetic relationship because genetic relationship is presumed. Knowing the Different Lawsuits The State Department currently faces two lawsuits and one potential filing regarding surrogacy citizenship: • The Dvash-Banks twins were born four minutes apart to a surrogate in Canada, but only one is a U.S. citizen. Because Elad Dvash-Banks, who is legally married to Andrew Dvash-Banks, is not a U.S. citizen, the twin he sired is not a citizen and his birth is “out of wedlock,” according to the State Department. A California court decided in February that both twins are entitled to a U.S. passport. In May, the DOJ appealed the ruling to the 9th U.S Circuit Court of Appeals. The DOJ pinned its action on a U.S. State Department interpretation of the Immigration and Naturalization Act requiring a child born abroad be biologically related to a U.S. citizen parent to acquire U.S. citizenship at birth. • Married U.S. citizen Allison Blixt and Italian citizen Stefanie Zaccari both had children in the United Kingdom using an unknown sperm donor. The State Department only granted citizenship to the child Blixt birthed. In Blixt v. U.S. Department of State, filed early last year, the couple argues that the State Department applied the wrong law to Zaccari’s biological child. Neither child was born “out of wedlock,” Blixt argues, since Zaccari was married to Blixt when she birthed her child. That application is unlawful, unconstitutional and absurd, the complaint says. • Most recently, citizenship was denied to the U.K.-born child of U.S. citizens James Mize and Jonathan Gregg because biological father Gregg was born in the United Kingdom to a U.S. mother but had not resided in the United States for the requisite time, 20 years. The couple, which just received their daughter’s citizenship denial in April, now live in Atlanta but wonder if their child faces deportation. The 50 States Regarding Surrogacy The U.S. surrogacy map explains why so many births take place in other countries. Surrogacy is legally prohibited in four states and the District of Columbia; surrogacy agreements are legally unenforceable in three states; 11 states permit surrogacy if certain conditions are met; in five states statutes or case law support surrogacy but results vary by venue; and in 20 states, no statute or case law expressly prohibits surrogacy. Only seven “green light” states -- California, Connecticut, Delaware, New Hampshire, Rhode Island, Nevada and Wisconsin -- legally recognize surrogate contracts. Odd, considering that same-sex marriage -- with the attendant right to parent children -- is legal in all 50 states. Odder that the Department of Defense gives surrogacy benefits to enlisted service members. Odder still that recent data from the Centers for Disease Control shows that infertility affects one out of every ten couples. Surrogacy would seem to be a critical resource for a large segment of the population. Fees and Costs In addition to the significant assisted reproduction costs, couples now may have to tack on costs associated with reports, paperwork and documentation to support citizenship applications. The State Department’s stance should make couples think twice before embarking on foreign surrogacy excursions. Make a Plan The best course of action for couples considering surrogate birth is to make things easy: Contract with a surrogate in a “green” state. Failing that, consult with an immigration attorney before pursuing an overseas surrogate birth. These are complex issues that invoke ethical and religious considerations. States have been divided over a range of reproductive issues, from abortion to the treatment of frozen embryos -- should they be considered personal property, human beings, or something else? Slow Moving, but Still Progressive Direction As with many changes in the law to reflect societal adjustments and technologic advances, the law surrounding surrogacy is moving slowly but in the direction that embraces parental opportunities for nontraditional families. With the help of the judicial and legislative branches of government, the challenges to the State Department’s decisions are about the move the needle, but it will be some time yet before these issues are resolved in a way that reflects both scientific and societal developments.