An adoption journey can be daunting for many reasons, including its cost, the emotional component, and the risks involved. Also thrown into the mix is the use of some unfamiliar terms to explain what the process will entail. It’s hard to understand what is going on if a prospective adoptive parent is uncertain what a word or phrase means. Becoming better versed in the common vocabulary is an easy way to make adoption more understandable. Let’s learn a few of those “say what?” terms.
Cases where the adoptive parents, birth parents, and the child to be adopted all live in the U.S. are known as domestic adoptions. The adoption process in these situations is governed by state law.
Not just anyone can adopt. Unless a close blood relative is being adopted, a prospective adoptive parent must be found suitable for placement to protect the child’s best interests. An assessment called a home study is thus conducted to gather information about the prospective adoptive parent and their ability to adequately care for a child. The results of the investigation are reduced to a written report which is submitted to the court in the adoption case.
If there are any concerns about a placement, they need to be evaluated prior to said placement, so a favorable preliminary home study is typically required for an individual to pursue an adoption. Home studies investigate a prospective adoptive parent’s financial ability to care for a child, their health, and any possible criminal background or history of child abuse. Additionally, the physical location where the child would live if adopted is assessed for safety and health concerns.
If deficiencies are found, a home study may be unfavorable with a recommendation the individual should not be allowed to adopt. Such a result may occur if, for example, a history of confirmed child abuse by the prospective adoptive parent is uncovered.
As part of the home study process, the background of a prospective adoptive parent is reviewed. This includes checking if the individual has been listed on a state’s child abuse registry. Most states operate a statewide central registry where child abuse records are listed naming the alleged perpetrator. Information on such a registry is confidential and may only be accessed by authorized individuals such as those connected with child protection agencies. This type of registry may be utilized for employment screening for positions involving contact with children or in connection with approving someone for a placement of a child.
Foster care is a temporary arrangement made by the state for a child to receive care in a safe and nurturing environment when their biological parent cannot provide it. The child’s parent may be deceased, but more often, a child has been removed from their home by the state due to abuse or neglect. Parental drug use is a common reason for a child’s removal.
Children in foster care may live with a relative or with unrelated foster parents. But this arrangement is not a permanent one. The goal of foster care is to reunite the child with the parent. Unfortunately, that goal cannot be met many times due to a parent’s issues with drug addiction or mental health conditions. When reunification is not possible, the parent’s rights are terminated, and the child becomes available for adoption from foster care.
Prospective adoptive parents who elect to pursue placement of a child from another country are certain to hear about the necessity of compliance with the Hague Convention. The concept of compliance is easily understood, but what exactly is this convention to which adherence is required?
The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (commonly referred to by adoption professionals as “the Hague Convention”) is an international treaty concluded on May 29, 1993, in The Hague, The Netherlands. The agreement’s aim is to provide safeguards for protecting children, birth parents, and adoptive parents in intercountry adoptions. Accordingly, this convention sets international standards of practice for intercountry adoptions. In addition, the Hague Convention ensures adoptions completed under its provisions will be generally recognized and given effect in other party countries.
The Convention came into force in the United States on April 1, 2008, and over 100 countries are recognized as Hague countries by the U.S. Hague countries are listed on the Department of State’s website.
The Hague Convention requires U.S. citizens habitually residing in the U.S. who seek to adopt a child habitually residing in another country to follow the Hague process. This process includes the requirement for prospective adoptive parents to file a specific form in order to be found suitable and eligible to adopt prior to accepting placement or adopting. They must also work with a U.S. accredited or approved adoption service provider (“ASP”) on the adoption.
Consent is an agreement by a party such as a birth mother or a birth father, or by a person or agency acting in place of a parent, to relinquish a child for adoption and release all rights and duties with respect to the child. Consents are regulated by state law and are usually given in writing and witnessed and notarized or executed before a judge.
State adoption laws control the timing of the execution of consent. When post-birth consent is required, a waiting period may be imposed which mandates the elapse of a specified time after birth before the consent may be taken. Such a delay is justified as necessary to allow a birth mother to recover from the rigors of childbirth prior to signing important legal paperwork which she needs to understand.
The length of time for a waiting period varies from state to state. In Florida, for example, consent may not be taken until at least 48 hours following the child’s birth or the entry of an order in the birth mother’s medical chart authorizing her discharge from the hospital.
Duress is compelling someone to do something which he would not voluntarily do. A consent to adoption must be signed voluntarily for it to be valid. Consents signed under duress are thus not valid. Use of threats or force is often utilized to exert duress. Holding a gun to someone’s head to get them to sign or threatening to harm their child if they do not sign a consent are examples of forcing consent under duress.
Revocation of Consent
Once consent to an adoption is signed, the birth parent may be allowed to “take it back” by the applicable state law. Revocation of consent is the withdrawal of the agreement by a parent to place the child for adoption. The time limits for revocation and the circumstances under which such action is permitted are governed by state law. Most states authorize revocation of consent where fraud or duress is involved in obtaining the consent.
Placement is the momentous occasion on an adoption journey when the child to be adopted is put with the prospective adoptive parent. The child is then physically with the individual pursuing the adoption. The adoption is not yet completed at this point because the legal process must run its course, but the child is in the physical custody of the future adoptive parent. Placement normally occurs after the execution of a consent to adopt and triggers the requirement of post-placement supervision.
When a child is being placed for adoption, there is no question who the child’s mother is; she is the woman who gave birth to the child. A quick glance at the child’s birth certificate will identify her. But the identity of the biological father is not always clear. The birth mother may claim a specific man is the child’s biological father or a man other than a husband may claim paternity of the child. An alleged or reputed biological father of a child born outside of marriage is referred to as a “putative father.”
A legal father is a man recognized by the law as a child’s male parent. The legal father may, but does not have to be, the child’s biological father. Generally, states presume that a husband is the father of any child born during a marriage. Thus, a husband is the legal father of a child born to his wife during their marriage regardless of whether he is the child’s biological father. As such, his rights must be addressed if the child is to be adopted.
Termination of Parental Rights
In an adoption, the rights of any parent connected to the child initially are severed and the adoptive parents are substituted in place of those individuals whose rights have been terminated. The bottom line of termination of parental rights is that the legal parent-child relationship is ended. In the eyes of the law, the parent and child are no longer connected; while a biological connection still exists, no legal connection remains. When an individual’s parental rights are terminated, they no longer have the authority to direct medical care for the child, determine the child’s name, or make decisions about the child’s education and upbringing; they also do not have the right to custody of or visitation with the child.
For an adoption to occur, the parental rights of any parent, legal or biological, connected with that child must first be terminated. The legal grounds which provide a basis for such termination vary depending on state law. Execution of consent to an adoption provides a basis for a voluntary basis of that parent’s rights to the child. Nevertheless, parental rights may also be terminated involuntarily, and abandonment is often recognized as a basis for doing so. Where abandonment is recognized as a ground for termination, the state law will control what constitutes abandonment. Typical behavior which evidences abandonment is a period of time where the parent has no contact with the child or the failure to provide financial support for the child.
When the adoptive parent lives in one state and the child to be adopted resides in another state, the situation gives rise to interstate adoption. These types of adoptions must comply with the Interstate Compact on the Placement of Children, commonly known as “ICPC,” an agreement to which all fifty states are parties.
One of the requirements of ICPC is that both the sending state (the state where the child is located) and the receiving state (the child where the adoptive parent lives) must review the paperwork. Until both states have given their approval of the paperwork, it is illegal for the child to be removed from the sending state by the prospective adoptive parent. When such approval is obtained, the prospective adoptive parent has clearance to travel to their home state with the child.
Not all adoptions have happy endings. The risk of disruption always exists. In a disruption, the adoption is interrupted prior to finalization. The terms “failed adoption” and “failed placement” are more common terms to describe what happens in these circumstances. The bottom line is that the adoption is not successfully completed.
Statute of Repose
Once an adoption is finalized, is it truly over? Perhaps not. What if a previously unidentified birth father pops up years down the road and wants to overturn the adoption and claim his child? The existence of a statute of repose will wipe out the cause for concern about this future development.
A statute of repose is a law that sets a fixed period of time after which a lawsuit is barred. Once that time has elapsed, the pursuit of a legal challenge is unavailable regardless of what the facts are. Each state sets its own time frame for a statute of repose. In Florida, the statute of repose in adoptions is one year; no challenge to an adoption may be filed more than one year following the entry of a judgment terminating parental rights. Thus, if John Doe wants to challenge the adoption of a child he claims is his biologically, the clerk will not even accept his paperwork to commence a lawsuit more than one year after a judgment terminating parental rights was entered.
An adoption journey is full of many things including emotions, uncertainties, risks, and unfamiliar terms. Of these things, unfamiliar terms are the easiest to get a handle on. Simply make the unfamiliar more familiar by taking the time to learn what the words and phrases related to the adoption process mean. Either ask an adoption professional to explain the meaning to you or do some research to find out the definition of the mystery word or phrase. Being in the know is the way to go for a less daunting and more understandable adoption journey.Are you and your partner ready to start the adoption process? Visit Adoption.org or call 1-800-ADOPT-98 to begin your adoption journey. We have 130+ years of adoption experience and would love to help you.