An Overview of the Child Adoption Process

Adoption is a legal process where one individual, through judicial involvement, legally gains parental rights and responsibilities related to a second person. While the adoptee is generally a child, this is not always the case. Overall the process of adoption is not complicated; however, there are several specific procedural hurdles which must be cleared in order for the adoption to proceed. There are also frequently time periods that must pass prior to a final hearing granting an adoption being held. Adoption laws vary from state to state, but this article is intended to give an overview of the general process of adoption.

There are several scenarios where an adoption may occur and all do not involve a husband and wife adopting a child. For example, it is quite common when one spouse marries another that the new spouse may adopt the other's children from a prior relationship or marriage. In some cases it is also possible for adults to be adopted.

Any adoption will require Court involvement as orders must be issued from a court of competent jurisdiction for the adoption to be valid and recognized.

In the stereotypical situation of a married man and wife adopting a child, there are several ways in which the process could occur. The first step in any process would involve the placement of a child with the adoptive parents. If the adoption is being done through the jurisdiction's social services agency, it is not uncommon for the child to be placed with the adoptive parents well prior to the final adoption hearing. Once the placement is done, the social services agency will likely do a study to ensure that the adoptive home is appropriate for the child. A visit will also have occurred prior to the initial placement to ensure the home is safe for the child. Once an agency determination is made, then it is possible, once any statutory time periods have passed, to have a final hearing to grant the adoption. Typically a hearing will involve the adoptive parents being questioned by the Court and that an accounting of funds expended during the adoption process be submitted to the Court. The Court may also require a disclosure of any assets held in the name of or in trust of the child to be adopted. If the Court is satisfied that the adoptive parents understand the implications of the adoption and feel the adoption is in the best interest of the child, then the adoption will be granted.

There can also be private adoptions where the adoptive parents locate a child for adoption outside of a social services agency. In this scenario, the requirements are essentially the same as were addressed above, but rather than the study of the home being done by an agency representative, the study is done by a private Guardian ad Litem who visits with the child and the adoptive family and then makes a report to the Court on whether the adoption is in the child's best interest. This private Guardian ad Litem may be an attorney or lay person and will be familiar with the adoption process. This person is not out to defeat the adoption, but is there to provide an independent report to the court. As with the prior situation, certain reports are required and if the Court determines the adoption is in the best interest of the child, then the adoption will be granted.

So while the process of the Court granting the adoption is quite simple, there are several key events that must occur before the Court can even consider the adoption. Of course the main event that must occur is that a child be available for adoption. There are private individuals and agencies which assist with this, some even charging a significant fee. Children come from social service agencies where parents have lost the right to parent their children as a result of the abuse or neglect of their children. Orphans are frequently adopted. Children are adopted from foreign countries; however, in foreign adoptions, there may be certain procedural matters relevant to the foreign jurisdiction that must be addressed prior to placement and/or adoption of a child in the . It is also common for adoptive parents to locate a pregnant woman, assist her during her pregnancy then adopt the child after the birth. This is perhaps one of the most desired forms of adoption as it allows the adoptive parents to take the child home directly from the hospital and then proceed to complete the remainder of the adoptive process.

So while the adoption process is straightforward, there is one requirement that can frequently be the death knell of an adoption for without it, the adoption cannot proceed.

The granting of an adoption accomplishes a number of changes; however, the primary action which occurs is that the adoptive parent[s] is/are granted all parental rights and responsibilities in regard to the adopted child. While this may seem obvious, what it implies is that at the time of the adoption, there are no other individuals that have parental rights to the child, even if the rights are simply potential. As a result of this, the biological parents of the child must either relinquish their parental rights or have their rights terminated by a court of competent jurisdiction. There are a two main ways this can be done. First, both of the biological parents, except in the case where a spouse has remarried and their new spouse is adopting their children, must voluntarily execute a document wherein they absolutely and forever surrender their parental rights. By doing this, legally, it is as if they never had a child. The biological parent who signs such a document has no right to receive future information concerning the child, cannot claim the child for any purpose, cannot benefit as a result of the child, has no right to visit with the child and also has no duty to support the child. Once a biological parent signs such a document, the document must be approved by a court of competent jurisdiction and incorporated into a court order. In the event the relinquishment cannot be obtained voluntarily, under certain circumstances it is possible to obtain the relinquishment through a trial or hearing before the Court.

To be able to have the Court terminate a parent's rights, typically it will be an action through a social service agency where the parent has engaged in some form of abuse or neglect. If a private parental rights termination action is brought, then the action must allege that the parent from whom the termination is sought has not supported or visited the child for a certain period of time, sometimes as little as six months. If this can be proven, then an action can be maintained. However most contested termination actions occur where a biological parent or even both biological parents cannot be located or the identity of the biological parent is unknown. There exist certain statutory mechanisms to proceed with a contested action where the Defendant cannot be located, though such actions take longer than those in which the Defendant's location is known. In a situation where the Defendant/biological parent can be located and they will not voluntarily execute a relinquishment of parental rights, it can be extremely difficult for a Plaintiff to succeed as courts are reluctant to terminate the rights of a parent who desires a relationship with their child. Part of the court's role is to further public policy and it is a favorable policy to support and foster the parent/child relationships where such a relationship is not detrimental to the child. This means that just because one party wants an adoption, if the biological parents or even one parent does not want the adoption or will not cooperate, it will likely the adoption will not go forward. This is not to say that if a biological parent will not sign a relinquishment that an adoption cannot proceed, it is simply to make the point that the party or parties seeking the adoption will have a high burden of proof to meet to be successful in terminating the parents parental rights and that their success cannot be guaranteed from the outset. Once a court either orders parental rights terminated, or once a relinquishment is approved and adopted by a court, it is extremely difficult for a person to have such an order overturned.

Once an adoption is granted, the party or parties who adopt the child are legally that child's parents and have all rights and responsibilities as would a biological parent. A new birth certificate is issued showing the child's new name, the child can inherit from the adoptive parents, should the parents separate child custody issues, including child support must be addressed and any other requirements or obligations that a biological parent may have, the adoptive parent will have. In all ways, it is as if the adoptive child is the biological child of the adoptive party or parties. It is for this reason that sometimes adults are adopted to legally establish a parent/child relationship. It is important that prospective adoptive parents understand this as they cannot later decide they no longer wish the adoption to continue.

Many people ask about gay adoption and whether such can occur. It appears that only one state, Florida, completely bars gay adoption. Approximately 20 percent of the states allow joint gay adoption meaning both of the adoptive parents are listed as parents and have equal rights to the child. In other states, it is more complicated. Some states allow gay adoptions where one party adopts the child and then the other party applies for "co-parenting" or "secondary rights." Some states will not grant gay adoptions; however, in the states there is no specific law prohibiting, or allowing, such act, it is merely up to the individual judge. In short, should a gay couple desire to adopt a child, they would be well served to consult an attorney prior to taking any such action. If they were to bypass gaining specific legal counsel on this point and proceeded to have one of the two actually adopt the child, should the gay couple ever split up, the second party runs the risk of having no legal recourse which could be pursued to allow them even the most minimal form of contact or visitation with a child they had come to think of as their own.

Overall, adoption can be one of the most rewarding and fulfilling acts in which a party can participate; however, make sure to consult an attorney prior to beginning the process.

This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.