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An adoption
Creates new legal relationships between
parents and children. It terminates the legal relationship
between a child and its birth parents and, at the same time,
creates a new parent-child relationship between a child
and its adoptive parents.Though it is a legal proceeding, an adoption has profound implications for both sets of parents. For the adoptive parents, it creates a new family. For the birth parents, the adoption assures the security and well-being that they may not have been able to provide to the child.
The process, though, may present an enormous emotional challenge for the birth parents; this challenge may make the legal process all the more complicated. No other area of the law seems as emotionally charged as adoption, and in no other area can a legal misstep have such devastating emotional effects.
An experienced adoption attorney can be invaluable in assisting both the adoptive parents and the birth parents in planning the best strategies, and offering advice to avoid problems and disappointments.
In the
United States there are three avenues of adoption:
private domestic adoption, agency adoption, and
international adoption. Choosing the best avenue can
be difficult.For the adoptive parents, the choices to consider are:
For the birth parents, the choices to consider are:
None of these choices is easy, nor is any one always the best. Experience tells us, thankfully, that any of the methods eventually works. Each birth and adoptive parent will choose their own "best" method, the one with which they are most comfortable, and which meets their needs.
In all
cases, New York State law requires that certain procedures
must be followed before a child may be placed with an
adoptive parent. The legal and procedural steps must be
followed explicitly to avoid a painful delay, or even the
removal of the child from the custody of the adoptive
parents.New York State law requires all those pursuing a private adoption, or not working with an agency licensed by the State of New York, to be "pre-certified" by a court. In New York, both Family Court and Surrogate's Court have jurisdiction over the adoption process. Your attorney will assist you in selecting the appropriate court and counsel you on the procedures. Each court, and even each judge, may have slightly different practices and requirements.
A home study
is a formal review of the applicant's ability to be an
adoptive parent, and is the first step in any
adoption. It considers factors such as the applicant's
willingness to be an adoptive parent, home environment, and
social and economic background. Of equal importance is the
educational aspect of the home study--the social worker
should spend a considerable amount of time in counseling the
adoptive parents about the subtleties of being an "adoptive"
parent, as opposed to being a "biological" parent. As part
of the home study, the adoptive parents will be required to
provide references, health data, and information on their
financial ability to raise a child. Public and private
agencies, as well as private social workers, are empowered
to perform this home study. Your selection may be based on
cost, local court requirements or the ultimate goal of the
adoption. Many foreign countries require that home studies
be performed only by licensed agencies. In the area of public agency adoptions, adoptive parents complete "map" training, as opposed to a home study.For pre-certification, the completed home study, fingerprint forms, and a petition for pre-certification are submitted to the court. The State of New York will also be asked to provide information about whether the adoptive parents have any records or reports relating to child abuse or maltreatment.
The court may also require a personal interview with the applicants. This interview, as with much of the pre-certification process, is generally informal. The process is designed to eliminate parents who are obviously unsuitable, such as those who have criminal records for child abuse or maltreatment, or who are otherwise unsuitable.
Adoptive parents are often concerned that some factor in their background may exclude them from adopting a child. Any concerns should be discussed with their attorney and the social worker performing the home study, who can help evaluate the issues and how best to present the petition.
If the baby has been born out of state, the adoptive parents must comply with the requirements of the Interstate Compact on the Placement of Children (ICPC) which makes certain that the adoption complies with the laws of both the state of birth and New York. While compliance typically involves only the processing of various forms between the "sending" and "receiving" states, the baby cannot be brought into New York until the review is complete. This process may take several days.
In most states, the ICPC requirements are satisfied by providing background information on the birth parents, medical records for the child, the home study of the adoptive parents, a statement of the fees and expenses paid by the adoptive parents, and either consents to the adoption by the birth parents or court orders of termination of those parental rights.
Although the laws of each state must be examined to be sure that they are not conflicting, it is usually possible to make accommodations to satisfy the requirements of each state. However, a few states permit adoptions arranged only by licensed adoption agencies. Careful planning by the adoptive parents and their attorney can help to avoid complications.
After the
adoptive parents have had custody of the child in New York
for at least three months, the baby can be formally adopted. A
follow-up home study will be performed to document the
integration of the baby into its adoptive home. Once again,
various legal documents will be filed with the court, and a
hearing will be held. After the court has issued
its final order of adoption, the New York State Department
of Health, or the child's state of birth
will issue an amended birth certificate. This
certificate will show the child's name, as given by the
adoptive parents, and will also show the adoptive parents as
the parents of the child.
The most
common form of adoption in the United States is "private" or
"independent" adoption. This process allows the birth
parents and the adoptive parents to plan the adoption which
best suits their needs, as well as the needs of the child.
The families may choose to have as much or as little contact
with each other as they find comfortable, and the options
can vary considerably.Prior to the 1900's, Adoptions were typically "closed" with no direct contact between the adoptive parents and birth parents, and perhaps only a minimal exchange of information. The current trend is towards more "open" adoptions. These open adoptions may involve one or more meetings before or after the birth of the child, an agreement to exchange information about the child after placement, visitation in the hospital following the birth, participation by the adoptive parents in the birthing process, or other arrangements acceptable to the people involved. Independent placements allow the families to structure these arrangements in the most practical and comfortable manner. The keys to successful private adoptions are mutual agreement on the plan and good faith in its implementation.
One of the most difficult choices with which adoptive parents wrestle will be which avenue to pursue. Some adoptive parents are reluctant to advertise, while others are restricted by the cost of advertising. As with all facets of the adoption process, careful planning and reliable advice can be invaluable. Many adoptive parents are concerned that their age will limit their options in adopting a child. This may be a factor in some agency or international adoptions, but is not likely to be an issue in private adoptions.
New York prohibits dual representation, in which the same attorney represents both the birth parents and the adoptive parents, in order to be certain that respective rights are protected and to minimize complications. The adoptive parents and the birth parents should each have independent legal counsel.
Throughout
the adoption process, each of the parties' needs for
confidentiality and privacy must be respected. Increasingly,
adoptions are more open, and adoptive parents feel
comfortable in working directly with birth mothers. On the
other hand, the parties may prefer that all discussions take
place through their attorneys. The attorneys should help
resolve any differences, and suggest solutions which will
further the process. Each party should trust their instincts
and craft an adoption plan that is comfortable and
practical.
The birth
mother may request, either directly or through her attorney,
that the adoptive parents pay for a number of expenses
surrounding the birth of the child. New York strictly limits
payments to the birth mother to three general categories of pregnancy related expense:
unreimbursed medical expenses of the mother and child,
reasonable living expenses, and legal fees.Once again, the attorneys can best handle these details to ensure that the adoption is not threatened by a well-intended but illegal payment to the birth parents. An illegal payment could jeopardize the court's finalization of the adoption and result in the child being removed from the adoptive home. A common question is whether reimbursements made to the birth mother are returned to the adoptive parents if the adoption is not successful. Legal counseling and mutual agreement may help to resolve some of these issues.
Consideration of the birth father's rights
is an important element in private adoptions, and cannot be
overlooked. A significant number of birth fathers support,
or at least acquiesce to, the adoption process.New York law distinguishes between married and unmarried birth fathers. Consent to the adoption is always required in cases where the father is the husband of the birth mother or where the birth mother is married, even when another individual is the biological father. The legal rights of an unwed birth father must be promptly asserted, and he must also establish that he is both the biological father and willing to fulfill his parental responsibilities. Abandonment of the birth mother and child by the biological father may also make the biological father's consent unnecessary.
There are
many adoption agencies in the United States which place
children for adoption. Some specialize in domestic
adoptions, adoptions for children who are "special needs are hard to place
(for example, those suffering from a handicap or who are
beyond infancy), and international adoptions. Placements
through social services agencies are usually made without
fees to the adoptive parents; placements of handicapped or
hard-to-place children may include subsidies and other
financial incentives to the adoptive parents.Legal procedures in agency adoptions are similar to private adoptions. While agencies are able to place the most sought-after newborn babies, their waiting lists are often many years long. Because Adoption Agencies have higher overhead cost, as well as the expenses of locating children to adopt, agency adoptions tend to be more expensive that private adoptions. Some adoptive parents will work with an agency and simultaneously pursue a private adoption.
International adoptions have
become increasingly popular. Selecting the country or countries on
which to direct the search can be a difficult choice for the
adoptive parent to make.The choice is often simplified because many countries, and agencies in the United States, have stringent criteria. The criteria may appear arbitrary, and often are. They may require that only married couples may adopt, that the adoptive couple must be married for a designated period of time, that they will not work with gay and lesbian adoptive parents, that the adoptive parents be an average weight or practicing members of a particular religion, or the like. These requirements may be daunting. Enough alternatives exist, however, that few people are precluded from an international adoption.
The waiting period for placement can range from several months to a year and a half, depending upon the agency or country of choice. For older couples and those adoptive parents with unconventional lifestyles, an international adoption may offer the greatest likelihood for prompt success.
Just as in a private or agency adoption, the adoptive parents must comply with the laws of their home state, with the requirements of the individual country and with the requirements of the United States. As with any adoption, it is important that these requirements be followed to the letter.
Many international adoptions are "finalized" in the country of the child's birth. In other words, the child is officially adopted abroad. Although some parents elect not to re-adopt the child in the United States, many attorneys and adoption professionals advise parents to re-adopt, since it will eliminate any uncertainties or questions concerning the legal validity of the international adoption. In addition, the adoptive parents will receive a new birth certificate after re-adoption in New York.
While adoptive parents frequently must travel to the birth country to complete the adoption process, this can be a wonderful opportunity to learn about the culture of the child's birthplace. Partly as a result of this travel, international adoptions are generally more expensive than domestic private adoptions.
Private and
international adoptions are expensive propositions. While
the cost of an adoption is of common concern to adoptive
parents, several avenues have recently appeared to help in
meeting the expenses. The adoptive parents may be eligible
for The adoption tax credit, based upon their annual income.
In 2003, this tax credit was $10,160. Many employee benefit plans offer assistance with
adoption-related expenses. No-collateral loans are available
from many lending institutions.
The child's
best interest should be the primary concern for everyone
involved in the adoption process. Indeed, each adoption
should pass the most stringent ethical and moral tests.The decisions about which steps to take, and how to take them, can be some of the most difficult choices a prospective adoptive parent will ever make. But once the process is successfully completed, the warmth and joy of adoption will be the realization of a dream -- to secure the love and joy of a child.
Return to Gregory A. Franklin's Home Page
Adoptions for couples and single parents
Services provided to birth parents and request for additional information
Attorney at Law
Ashcraft, Franklin, & Young LLP
95 Allens Creek Road
Building One, Suite 202
Rochester, New York 14618
(585) 442-0540
e-mail: gfranklin@adoptionattorneys.org