5 Open Adoption Legal Issues Adopting Parents Need To Know

This guest post is by Jay Deratany, an adoption attorney

adoption-attorney-Jay-DeratanyThere was a time not so long ago when adoption laws in the U.S. seemed set in stone. Both parties were sworn to secrecy and future contact was strongly discouraged, if not prohibited entirely.

Called closed adoptions because all records of the arrangement were kept under lock and key, they accounted for 99% of all domestic adoptions just two decades ago.

Today, however, 60 to 70% of domestic adoptions are open, which means birth parents may stay involved in their children’s lives.

This represents a huge shift in mentality about adoption.  And many people believe that this sort of arrangement is better for everyone involved.

But it does present a range of new concerns as well, some of them legal.  As you embark on your open adoption journey, familiarize yourself with the legal issues that could impact the process.

How it Works

Because it’s the most popular choice for pregnant women, most agencies, whether advocates or opponents, offer open adoption as an option. More complicated than traditional agreements because there are more people involved, open adoption gives the birthmother the right to choose who gets her baby.

If she desires future contact with her child, odds are she will select a candidate that will respect this right even after the adoption is finalized.

For new adoptive parents, the arrangement may seem unusual and there may be some hesitation involved, but there is no evidence that it is harmful.

In fact, many believe it to be a much healthier dynamic that exchanges openness and honesty for secrecy and silence. But to get there, the adoptive parents must go through a sometimes stressful legal process.

Why is it so trying?

1. Relinquishment 

Even after selecting the adoptive parents, the birthmother has the right to withdraw from the adoption process without consequence. It is not until she has signed the final relinquishment papers that the adoptive parents have any legal rights over the child.

Because withdraw is quite common, occurring in up to one-third of all cases, the process can be a harrowing one for would-be parents. They are essentially in limbo, waiting for the mother to place her biological baby with adoptive parents.

After the papers are signed, however, the adoptive parents assume all legal rights to the child.

2. Reclamation 

The single greatest fear of most couples who go through an open adoption is that the birthmother will someday want her baby back. The good news for adoptive parents is that that nightmare scenario is more nightmare than reality. Why?

Most adoption agencies take the proper legal steps to ensure that that cannot and does not happen.

Even if the case were to make its way to court, the adoptive parents would be on firm legal footing, having been through the process with the support of the adoption agency.

3. Future Involvement 

When a birthparent does go to court to try to overturn an adoption, the motivating factor is often a lack of contact. In most of these cases, the claim is made that the adoptive parents broke their original promise to allow regular visits.

Because these agreements are enforced on a state level, the biological parent may or may not have the legal right to contact. In fact, the courts generally only enforce an open adoption agreement if it clearly benefits the minor child.

Although the courts often side with the adoptive parents, couples must decide on an individual basis how much contact they will permit.

At the end of the day, they have the final say over who they let into their child’s life. When in doubt, the adoptive parents should contact their attorney and ask about the current laws, since they change from time to time.

4. Future Changes

For an agreement to maintain contact to carry any legal weight, it must be approved prior to an adoption finalization. A birthparent cannot, for example, request additional visits that are not covered in the original agreement.

As a general rule, the contract should specify the kind and frequency of all future contact between the birthparent and his/her biological child. That way, both sides will know exactly what their rights are. Changes to existing agreements are occasionally permitted if they are in the best interest of the child and both sides agree.

5. Differing Laws

As we mentioned, open adoption contracts are governed by state law. In addition to birthparents, other birth relatives may be eligible for contact. In many states, siblings may be granted visitation rights.

But some state laws are even more specific than that. For example, in California, all members of a Native American adoptee’s tribe are considered the birth family. That is why couples who are interested in open adoption should check their state’s laws before they move forward.

In conclusion, open adoption is a complicated process that involves various legal issues. Couples who are interested in pursuing it can greatly improve their chances of success by speaking with a family law attorney beforehand.

The most important thing is to go in with both eyes fully open so that you can be prepared for any and all possible outcomes and form realistic expectations of the process.

Jay Deratany is a practicing Chicago injury attorney and the founder of The Deratany Firm, a firm that specializes in protecting the rights of adoptive parents and children.  Jay is also active in pro bono law and philanthropic organizations that work on children’s behalf. To learn more, connect with Jay on Google+ and visit The Deratany Firm. 

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