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Asking on behalf of a co-worker's niece. She is considering adoption and really wants to make sure it's open if she goes that route. I know openness isn't legally enforceable in every state--does anyone have a list of the states where it is?
And is it only enforceable if both parties live in that state, or does the protection hold even if either set of parents move to another state?
Thanks!
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Be careful. Even if she finds a state where it says an open adoption agreement is "legally enforceable"... it generally must be part of the final adoption decree (so incorporated by the court) for it to really be so. So, just a contract by itself signed by the birth parents and adoption parents isn't enough.
Good luck.
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That brings up a good point - if OA is NOT legally enforcable in her home state and if she does place, can both parties have some sort of bare-minimum agreement in the court finalization paperwork anyway?? Just wondering and thinking outloud.
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TAP
Be careful. Even if she finds a state where it says an open adoption agreement is "legally enforceable"... it generally must be part of the final adoption decree (so incorporated by the court) for it to really be so. So, just a contract by itself signed by the birth parents and adoption parents isn't enough.
TAP brings up an excellent point. Here in California, OA agreements are legally enforceable, but only if the agreement is submitted to the court by the adoptive parents at finalization. Birth parents are often not even aware if the aparents have filed the necessary paperwork or not. Unfortunately, this legal loophole has enabled a few aparents to promise OA to prospective birth moms and then close the adoptions down at finalization. I'm really hoping that our state legislators will change the law and require birth parents to be notified if and when the OA agreements are filed with the court.
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just a thought (not that I'm trying to push this type of family in any way)- if she chose a family that already has one child in a successful open adoption they are probably more likely to continue that with the next child.
Of course I guess you never know, anything is possible but then you aren't taking a gamble on a family that's unproven per say. Actions speak a lot louder than a piece of paper any day.
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Thank you all very much, that is good to know and I will pass it on. I don't know which state the niece is actually in and she seems to move around a lot, but on the east coast between Washington and New York. I believe she is likely to be in Maryland, Virginia, New Jersey, or New York.
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In OR open adoption agreements are legally enforceable in civil court, but there must be an actual agreement presented, not just a verbal. I think this is enforceable for adoptions finalized in OR. We worked with another state once and they do not have any legally binding open adoption agreements, so we had no options in that area.
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Adoption.com actually has a library that includes each state's adoption laws. It's very helpful! The question about the location of the parents is very interesting. I am really not sure. We adopted in-state in a state with legally enforceable OAs.
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It is legally enforceable in New York if the PACA is submitted to the court.
In our case, the kids' first mother was the one who decided whether or not to have the PACA made part of the adoption decree. I don't know whether this is state law or just our agency's rule.
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In order to be enforceable, there has to be some sort of written agreement that has been approved by both sides. Any breach in the agreement won't jeopardize the adoption itself, it just means that either party can go to court to make the other party comply with the agreement.
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Enforceable in NV but it arguably has to be made part of the adoption decree (however, whether an agreement exists is one of the specific questions asked so if Aparents lied under oath, it would probably be enforceable as a penalty).
Her best bet is to choose aparents who are already in a successful open adoption in her state regardless of whether open adoptions are enforceable. The reality is that she most likely will not be able to afford a lawyer to fight for enforcement in a state other than her own.
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TAP
Be careful. Even if she finds a state where it says an open adoption agreement is "legally enforceable"... it generally must be part of the final adoption decree (so incorporated by the court) for it to really be so. So, just a contract by itself signed by the birth parents and adoption parents isn't enough.
Good luck.
This is true but if you work with a reputable attorney or agency it will be. Our attorney basically required that we have an agreement signed by both parties (bparents and us) that describes the level of openness and what is expected. He requires the agreement even if it is closed or fully open it is part of the finalization documents. Basically it had to be there and signed by both people. I don't know that the agreement (regardless of what it says) is required for finalization (it could have been), but our attorney required it. I don't think it would have been possible to not file it with the court.
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Thank you all. I agree it is unlikely she'll ever have the resources to have an agreement enforced in court if it came to that. I like the advice about looking for a couple already involved in an open adoption and I encouraged her aunt to pass that along.
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