| Adoption Law |
Adoption policy in the United States is undergoing a great deal of public scrutiny. News reports in recent years have featured dramatic stories of conflicts between biological and adoptive parents, raising questions about how to balance the rights of both families and about which policies further the best interests of the adopted child. These cases have helped clarify important legal and social questions surrounding adoption. Although adoption remains a hotly debated and legislated area of the law, most adoptions proceed through the legal system with little, if any, conflict. For many families, adoption is a perfect way for adults to provide love and care to a child whose biological parents are not able to do so.
Adoption law, like most family law, is state law; there is very little federal regulation of adoption. Each state has the authority to create adoption laws and to regulate adoption agencies. One major exception to this rule concerns adoption of a child from another country. The United States Immigration and Naturalization Service (INS) imposes additional regulations on such adoptions; the adoptive parents must be United States citizens, for example. Adoption in California is governed by the California Adoption Law.
What Is Adoption?
In an adoption, parental rights are transferred from the natural or birth parents to the adoptive parents. Adoption is a legal arrangement; the adoptive parents become legally responsible for the child they adopt and they obtain all legal parental rights with regard to the child. This legal proceeding is so complete that a new birth certificate is issued for the child. It shows the adoptive parents' names as the child's mother and father at the time of birth. The original birth certificate is retained but sealed, so it can be accessed only by court order.
There are four types of adoptions of children under age 18 in California: relinquishment or agency adoptions, independent adoptions, intercountry adoptions, and stepparent adoptions.
Most of the laws and regulations concerning adoptions are applicable to so-called stranger adoption or unrelated adoption. That is, people seek out a child to adopt through an acquaintance or an agency. Intercountry adoptions are similar to adoptions completely within the United States, but additional requirements and procedures apply.
Adoption may take place within a family. This kind of adoption sometimes is called a relative adoption. A stepparent who is responsible for providing the care, love, discipline, and guidance for the children of his or her spouse may formalize the relationship by adopting the stepchildren. As with any adoption, this can happen only if both natural parents agree.
In California, it is possible for an adult to be adopted by another, older adult. Generally, parental consent is not required and there is no requirement of a study or report, unless a court orders such information in special cases.
Open Versus Closed Adoption
If the adoptive and birth parents know each other and remain in touch after the adoption, the adoption is said to be open. If they do not know each other and do not stay in touch after the adoption, it is said to be closed.
Open and closed adoptions are not the only two options available to parents; they exist at opposite ends of a continuum of choices. The degree of openness in an adoption is determined by the parties involved and may be quite complex. Most important to a successful adoption is that all expectations regarding openness and the role both sets of parents will play are clearly communicated and understood by all parties. Adoption facilitators or attorneys can assist in ensuring the most secure adoption plan in the best interests of the child.
Who May Adopt?
Any adult in California may file a petition to adopt a child who is at least ten years younger than the petitioner. Commonly, married couples apply to become adoptive parents, although single and divorced people are not prohibited from adopting in California. California law as administered by agencies is quite flexible with regard to other qualifications. There is no particular age, housing situation, social background, or income level that makes certain people more qualified than others to be adoptive parents. Some people may be required to provide additional information to an agency considering their application. For instance, working parents would be required to demonstrate how child care will be provided.
California's Department of Social Services provides various services to people wishing to adopt, such as listings of licensed public and private adoption agencies, independent adoption services and, in some cases, financial and medical assistance.
Adoption Placements and Procedures
An agency placement or relinquishment placement of a child for adoption is one made through a licensed county or private adoption agency. Under an agency adoption, the birth parent signs a document in which all parental rights are relinquished to the adoption agency. The birth parent may designate the adopting parents. Approximately two-thirds of all adoptions in the United States are arranged through agencies.
In California, all agencies specializing in adoption are licensed by the Department of Social Services to provide specific types of adoption services. Even with these regulations, however, not all licensed agencies are equal. Agencies differ as to the services offered, adoptive clients served, geographic area served, fees charged, and age of the child to be adopted. When dealing with an adoption agency, it is best to ask questions to determine whether the needs of the adoptive parents and the birth parents are met by the services offered by the agency.
When a birth parent places a child directly with the adopting parents, an independent adoption is said to occur. An independent placement is one arranged between the adoptive and birth parents without the assistance of an agency. In this situation, the parties have come together through other means--usually through mutual friends. However, even in the case of an independent adoption, the adopting parents must file a petition to adopt and must undergo many of the same procedures as in an agency adoption.
Initiating an Adoption
Before the adoption of a child can commence, the child's birth parents must voluntarily give up their parental rights by signing a document relinquishing all legal rights with regard to the child. Parental rights may also be involuntarily terminated: the parents are declared unfit by a court of law. For example, a court may find that a parent has abandoned the child, severely abused the child, or has shown such little interest in caring for the child that he or she is not competent to be a parent. Usually, however, when birth parents relinquish their right to raise a child, they do so consensually.
The right to care for the child and make decisions on his or her behalf may be given over to an adoption agency prior to the child's placement with his or her adoptive parents. Generally, both birth parents must relinquish parental rights. The consent of the birth mother may not be obtained until after she has been discharged from the hospital after giving birth. The father's (or presumed father's) consent must be obtained if the child was born while the parents were married to each other or within 300 days of their divorce, if the child's parents attempted to marry, or if the father openly holds out the child as his own by receiving the child into his home. If none of these conditions exists, the birth father does not need to consent to placing a child for adoption.
In California, as in all other states, it is illegal to buy a baby. Adoptive parents are prohibited from paying or offering anything of value to a parent for the right to adopt a child. This law does not prohibit adoption agencies or intermediaries, such as attorneys, from charging fees for their services. Also, most states, including California, allow the adoptive parents to pay for the birth mother's medical expenses related to the birth of the child, as long as paying the expenses is not contingent on the birth mother's consent to the adoption.
Qualification
Adoption agencies conduct a rather extensive examination of people who wish to adopt, to ensure that they are fit to do so. The agency assesses the child's needs and creates a record that includes a history and verification that the child is free for adoption. Agency workers perform a "home study," going into the potential parents' home to investigate that it is an appropriate place for a child. The adoptive parents are subject to an investigation of criminal, marital, medical, and employment backgrounds. The home study also includes an interview, the purpose of which is to ascertain whether the potential parents are ready for the responsibilities of parenting. Some of the issues covered in the home study include:
- Is the house clean and safe?
- Is there room for the child?
- How long have the applicants been married?
- Are both people eager to adopt?
- Do the applicants have any experience with children?
- Can they afford to have the child?
- Will one parent stay home with the child or will they use day care?
The goal of the interview and examination process is not to make sure the applicants have a lot of money, a big house, or a great deal of education. It is meant to verify that adoption is the appropriate choice for the couple and that they will be able to meet the specific needs of the child they are seeking to adopt. The home study also is an opportunity for the potential parents to obtain information from the agency worker and to have their questions answered.
Even if people arrange an adoption independent of an agency, a public or private agency still must conduct an investigation and home study.
Stepparent adoptions take place by way of a different procedure. A county clerk, probation officer, or another employee of a county welfare department makes a study and report about the circumstances of the adoption, and provides a consent form that the adopting parent and the parent relinquishing custody must sign.
Finalizing the Adoption
Once the applicants have been approved to be adoptive parents and to adopt a particular child, the child is placed in the home on a tentative basis. During this probationary period, the parents are required to file an adoption petition with the court. The agency then files a court report stating that the circumstances are favorable for adoption and recommending that the adoption petition be granted.
If the tentative placement is successful, a court enters a final adoption order. At this point, the new birth certificate is issued, and the legal rights and responsibilities of parenting go into effect. A final order of adoption is--as its sounds--final. It may not be challenged by the birth parents or other parties (although the adoptive parents' fitness, if it became an issue, could be challenged in a separate court proceeding).
Intercountry Adoptions
As noted earlier, adopting a child from another country is regulated not only by California law but by federal law, as well. The INS determines, according to its guidelines, whether a person or couple is qualified to adopt, approves the child for adoption based on a number of factors, including country of origin and level of health, and ensures that all requisites for immigration to the United States are met. Usually, married couples qualify to adopt, although single adults over the age of 25 may qualify also. At least one of the adopting parents must be a United States citizen.
Licensed adoption agencies provide services to assist people in adopting foreign-born orphans through the Intercountry Adoption Program. Although it is possible to adopt a child from another country independently, it is much better to go through an agency. Private agencies (public agencies do not facilitate intercountry adoptions) are experienced in avoiding the special problems that can arise when attempting to adopt in another country.
Intercountry adoptions can be more expensive than domestic adoptions. In addition to travel expenses, INS fees, and fees for additional documentation, agency fees usually are higher, as are foreign court fees. Many people work with a foreign agency, as well, which is an additional expense. Intercountry adoptions also can be more difficult. The waiting period both before and after the adoptive parents qualify may be longer, and there is a greater risk of medical and social factors becoming problematic.
All of this said, intercountry adoption is a perfect option for many people. Adopting a healthy infant may be a greater possibility in an intercountry adoption, because waiting lists for American-born infants are quite long. Also, many of the procedures for adopting a child from another country--such as home studies, investigations of the birth and adoptive parents, forms, fees, and court petitions--are not much different than the procedures required in any adoption.
Find an Adoption Attorney in Los Angeles County 661-310-7999 |
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