Adoption Laws

Adoption is a personal and life-changing act, but remember: it is first and foremost a legal process. A complex set of state and federal laws govern all U.S. adoptions. Having a basic understanding of these helps you avoid problems and advocate for yourself, so that you have more time and energy for adoption’s emotional and practical demands. Additionally, hiring an adoption attorney to handle the details is essential.

In general, most adoption laws are set at the state level and vary between states. However, there are additional federal laws that govern international adoptions and adoptions over state lines.

We’ll give you an introduction to adoption law, including the key points of state laws, the Interstate Compact that governs adoptions between states, and The Indian Child Welfare Act.

State Laws: The Primary Drivers

Each state sets its own laws about family rights, adoption, and post adoption. The details of these can vary significantly. Here are three areas of state law to be aware of:

Who Can Adopt

States generally have rules about who may or may not adopt. These include requirements about age, marital status, and residency. Some states may include rules about finances, mental and physical health, and criminal history, but often these aspects are covered by the home study.

Currently, all fifty states allow people to adopt, regardless of marital status. No state currently bans adoption based on sexual orientation, but legal protections for LGBTQ+ prospective parents vary by state. Note that private adoption agencies may have additional rules and requirements about who can adopt. Some religiously affiliated agencies may decline applications from LGBTQ+ individuals or unmarried couples.

Revocation Periods

In order for a child to be legally eligible for adoption, the birth parents must consent to the termination of parental rights (TPR).

Birth parents usually have a revocation period where they can change their mind and reverse the TPR decision. It’s crucial to check your state’s laws because the amount of time in this period varies widely – from twenty-four hours to as long as thirty days.

Advertising

Parents making an independent adoption may wish to advertise their interest as a way to match with birth parents. Likewise, birth parents may consider advertising their interest in placing their child for adoption.

However, many states have laws that either prohibit or regulate this type of advertising. A few states prohibit advertising completely, but most simply place limits on who is allowed to place ads.

The Interstate Compact (ICPC)

The Interstate Compact (ICPC) is a legal agreement between all fifty states, plus the District of Columbia and the U.S. Virgin Islands that sets rules and procedures for adoptions that cross state lines. These are meant to ensure that all children are placed in a safe home able to meet their needs.

The Process

For state to state adoptions, there is additional paperwork and waiting. First, the state sending the child submits full records on the child to the receiving state. The receiving state then conducts a home study on the prospective family and sends the full results back to the sending state. The child’s state then approves or denies the placement request.

In cases of private infant adoption, the adoptive parents complete the home study and paperwork in advance, and then travel to the birth parents’ state when the child is born. They must then be prepared to stay in the birth parents’ state for 1-2 weeks caring for the baby while the ICPC reviews their documents and gives final approval.

The Indian Child Welfare Act (ICWA)

In 1978, Congress passed the Indian Child Welfare Act (ICWA) to address the problem of adoptions that separated Native American children from their tribe and culture by placing them with Non-Native families. The ICWA aims to protect the interests of Native American children and help them maintain connection to their tribes.

Requirements

The ICWA gives the tribes jurisdiction and authority when placing Native American children for adoption. It also sets protections for Native American parents to ensure that they have not been coerced or pressured to place their child for adoption. The law prioritizes placing Native American children with relatives or other tribal families.

It is still possible for Non-Native families to adopt children with Native American heritage, but the process is more complex. If you’re considering adopting a child who is subject to ICWA, hire an adoption attorney who has experience and knowledge with the law.

Because adoption laws are so complex and vary widely by state, hiring an experienced adoption attorney is the best way to ensure that everything goes smoothly. You can start by browsing licensed adoption attorneys in your state at the Academy of Adoption and Assisted Reproduction Attorneys. Educating yourself on the basics of adoption law will help you feel more empowered throughout the process.