Open Adoption Agreements: Do They Work?

Michelle Hugheshead shotWhat happens when a child’s adoptive parents and birth parents have a disagreement after their adoption has been finalized? What if one party wants to have more (or less) contact than the other — or no contact at all? What if one party wants to keep in touch by email but the other one prefers communicating through phone calls or visits? Can the adoption be overturned if one side doesn’t live up to its end of the agreement?

Like any family relationship, open adoption relationships have their share of bumps in the road. What works for the adoptive parents may suddenly no longer work for the birth parents, and vice versa. The adoption they thought they had signed up for may not be the adoption they get, and that could create problems for not only them but also their child.

To head off these problems, many adoptive parents and birth parents sign post-adoption contact agreements or PACAs. A PACA is a written contract that outlines the nature of communication and contact between the adoptive parents and birth parents following the finalization of their adoption.

But questions remain about their effectiveness and whether they should be legally enforced. To help me sort out the issues surrounding open adoption agreements, I contacted Michelle M. Hughes, a Chicago adoption attorney who serves on the advisory boards of several agencies. She’s also a fellow of the American Academy of Adoption Attorneys and the co-founder of Bridge Communications, Inc. which specializes in diversity training and adoption education.

What are your thoughts about post-adoption agreements?

I have mixed thoughts. I practice in a state that post-adoption agreements are currently not enforceable. However, in about half the states there are some degree of enforceability and I believe as adoption and the times continue to change, that it will become common practice for states to have laws enforcing these agreements.

Ultimately, enforceable agreements redefine what “adoption” has traditionally meant and have the potential of joint parenting depending on the specific agreements and the specific applicable state laws. On the other hand, if adults wish to enter these agreements voluntarily and have the ability to negotiate fairly, I see no reason to not allow adults to enter the agreements.

I know I have seen adoption attorney colleagues in states that have enforceable agreements state the PACAs work well, encourage adoption especially in foster care cases, and confirm that rarely is there litigation later because everything is so clearly defined up front.

It also appears that these PACAs are being used to discover additional information — sometimes  fraud — from expectant mothers. Likewise, expectant mothers should be better able to discover from the potential adoptive parents their true intent of following through on promised “openness” and have recourse if  prospective adoptive parents do not comply.

As a side note, I do see adding an agreement which requires drafting and negotiation in the adoption process as increasing the expenses for the adoptive parents, which for many potential adoptive parents is already too expensive.

Do you think that most prospective adoptive parents and birth parents have a good handle on openness going into a placement?

I think most adoptive parents and most birth parents are ill prepared to handle openness when the placement begins. I also find potential adoptive parents who are really opposed to any openness quickly choose international adoption as their route of choice. Fortunately most people learn as they go. While some agencies and lawyers prepare both families well, often there lacks education on both sides, especially birth families. Furthermore, so often today families are connecting via the Internet and only use adoption professionals to make the adoption legal.

Consequently, little to no adoption education occurs for either the adoptive or birth family. People often have not discussed the relationship in detail, like a lot of marriages sadly, and when there are disputes hard feelings often occur when not necessary. Because “openness” can be defined so differently from person to person, expectations really need to be discussed up front as to avoid confusion. There are so many options: pictures, letters, e-mails, Skype, meetings, Facebook friends.

In my practice I have seen the biggest frustrations early on in the placement when the birth mom is intensely grieving and wants more contact and  the adoptive family is completely sleep deprived, often overwhelmed with a new baby, and not feeling as generous as perhaps they should be. I like it when each family is able to put themselves empathetically in the other families’ shoes.

I am also happy to see the smartphone with good camera technology, e-mail and texting ability making it much easier to keep contact. It definitely beats getting pictures developed, writing a letter, putting it  in an envelope, in the mailbox to an intermediary that one hopes gets the pictures to the birth family, which is the way it use to regularly be done.

Finally, as adoption changes with time, I believe all adoptions — domestic and international — will be open to some degree if the parties have any type of Internet accessibility. Thus, I believe if the adoptive parents and birth parents are not on the same page, or at least close to it, at the beginning, it is not the right match and people should move on before placement.

Furthermore, potential adoptive parents should never knowingly make promises they can not keep in order to get a baby. It is not fair to potentially put a child in the middle of their families’ squabbles. And with the Internet, the child will eventually get both sides of the story. I tell parents if you can not explain your actions to your child, do not do it.

From your experience, do you find many adoptive parents closing the door on birth parents after an adoption has been finalized. And if so, are their decisions made arbitrarily or with cause?

I read about adoptive parents closing the door, so I know those adoptive parents exist. And any adoptive parent that does that without just cause which I probably would define as for the health and welfare of the child — not the adoptive parents — are just plain wrong. This type of dishonesty does not seem like a sound foundation for good parenting. And as I stated above, eventually the child will get both sides of the story, learn of false promises, and I believe in most case it will prove to be counter productive to a good parent-child relationship.

I have met a birth mom or two who had the door closed, but in my practice it is usually the reverse. I am more likely getting calls from adoptive parents upset that the birth parents have closed the door. I have had adoptive parents go as far as hiring private detectives to locate the birth parents when they have moved with no forwarding address.

I am finding more adoptive parents who have gone through agency trainings requesting open adoption only to find themselves matched with an expectant  mom, at least initially, who wants a closed relationship.

Do you think most adoption agencies believe in openness or are they using it, as some people claim, as a marketing tool to manipulate expectant parents into placing their babies for adoption?

The agencies that most of my clients work with seem to genuinely believe in openness as long as both adoptive and birth families are open to it. Pun intended. My experience is it would be a myth that  it is used to manipulate birth parents.

However, as I do more interstate adoptions and learn that not everybody operates the same across the nation as I experience locally, I am coming to realize that there are undoubtedly agencies (and attorneys) who use it to mislead expectant  moms to get them to place.  It can be fascinating how different people’s adoption experiences can be region to region, agency to agency, and some times social worker to social worker within the same agency.

I am more concerned that expectant moms are not getting the information they need to know to choose the right family for them if they should choose to place their child for adoption. A good agency should reach out to other agencies, adoption attorneys, and other resources to meet the needs of the expectant mother’s request — whether it be religion, race, parenting style (includes openness), distance between families (which impacts openness), family make up (she may want a single parent or LGBT couple)  or whatever she wants for the child she is placing.

And if it conflicts with their policies of acceptable families or just doesn’t happen to be in their waiting families, they need to help her find the right match for her, not the match best for them. After all it is the birth mother who will have a relationship with this adoptive family for life, not the agency.

I think many expectant  moms are unaware of how many choices of  prospective adoptive  families have been pre-screened out by their choice of agency without any knowledge to them. The agency’s criteria may in no way reflect the importance of the criteria the expectant moms want in a family and it is important she is informed so she is working with an agency that matches her values and ultimately with an adoptive family that matches her values for her child.

What can adoption agencies and attorneys do to encourage more openness and honesty in open adoption?

They can encourage adoption education, communication, and at a minimum a good faith agreement outlining the basics of that families’ plans for continued contact or lack thereof.  In many cases, adoptive parents need education on socioeconomics (as many adoptions are across socioeconomic lines) and race (as 40% are transracial) in order to have the ability to build a solid relationship with their child’s birth family and understand cultural differences.

What can adoptive parents and birth parents do to build and maintain healthy relationships after their adoption has been finalized?

Of course the standard answers apply such as respect, communication, and spending quality time together. But I think people often forget that they need to set realistic expectations and expect the relationship, like all relationships, needs some fluidity. This includes taking into account that many things will change over the years in not only the adults’ lives but also the child’s life.

People get new jobs, they move, they divorce, they marry, they have more children, and the baby grows up and acquires a busy schedule of their own that parents need to work around: school, music lessons, sports, dance, play dates, summer camps, teen dating etc. There has to be some fluidity in any long term relationship.

What do you think of post-adoption contact agreements? Do they work? Should they be legally enforced? Leave you comments in the section below.

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