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A two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child toward the biological parents are terminated and new rights and obligations are created between the child and the adoptive parents.
Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.
Since adoption was not recognized at Common Law, all adoption procedures in the United States are regulated by statute. Adoption statutes prescribe the conditions, manner, means, and consequences of adoption. In addition, they specify the rights and responsibilities of all parties involved.
De facto adoption is a Voidable agreement to adopt a child, based on a statutory proceeding in a particular state, which becomes lawful when the petition to adopt is properly presented.
Equitable adoption, sometimes referred to as virtual adoption, is treated by the law as final for certain purposes in spite of the fact that it has not been formally executed. When adoption appears to comply with standards of fairness and justice, some states will grant a child the rights of one who has been adopted even though the adoption procedure is incomplete. An equitable adoption might be enforced by the court for the benefit of a child in order to determine inheritance rights, for example. Similarly, adoption by Estoppel is the equitable adoption of a child by promises and acts that prevent the adoptive parents and their estates from denying the child adoptive status.
Who May Adopt
To be entitled to adopt a child, an individual must meet the qualifications under the laws of his or her state, since the state has sole power to determine who may become an adoptive parent. Unless otherwise provided by state statute, U.S. citizenship is not a prerequisite for adoption.
A child may be jointly adopted by a Husband and Wife. If not contrary to statutory provision, either may adopt without being joined by the other. Unmarried people may adopt unless prohibited by law.
A growing area of controversy by the courts is whether adoption by a child's grandparents is a viable alternative. Such adoption might be considered in the child's best interests if the natural parents die or if the custodial parent is found unfit. A legal guardian may adopt a child but is not ordinarily given preference in the court proceedings.
The best interests of the child are of paramount importance in policy considerations toward adoption. Although legislative policy prefers such conditions as adoption by people of the same religion as the prospective adoptee, an interfaith adoption is allowed when it does not adversely affect the welfare of the child.
Elements in determining who will be suitable adoptive parents include race, religion, economic status, home environment, age, and health. Most of these criteria are taken into consideration in placements by agencies or in private placements where state law requires that adoptive parents be investigated.
Who May Be Adopted
Since the status of an adopted person is regulated by state statutes that authorize the adoption, state law determines whether an individual is a proper candidate for adoption. In addition, to be subject to adoption in a particular state, the individual must be living within that state.
Children may be adopted in situations where their natural parents are living, dead, or unknown, or where they have been abandoned. An adoption will not be prevented by the fact that a child has a legal guardian.
Some statutes expressly limit adoption to minors, and others expressly provide for adoption of adults. The adoption of adults is regarded by statutes and the courts in a manner similar to the adoption of children. Practically, however, the adoption of adults differs greatly, since it serves different purposes and creates few of the difficulties arising out of the adoption of children. In most cases, the purpose of adult adoption is to facilitate a device for inheritance. One may designate an heir by adopting an adult. Generally, the adoptee would not otherwise be entitled to inherit but for the adoption.
In the past, adoption was viewed primarily as a means for a childless married couple to "normalize" their relationship. The focus has switched, however; now, adoption is ordinarily seen as an institution that exists to help place children into improved environments.
A number of states have, in recent years, enacted statutes that permit subsidization of adoptions. The adoption procedure thereby became a social instrument for the improvement of the lives of underprivileged children. Subsidized adoption tends to encourage adoption of children by suitable individuals who would otherwise be unable to afford it. This type of adoption has a significant effect upon placement of children labeled hard-to-place. Such children, who are frequently either physically or mentally handicapped, might have no other alternative except protracted institutionalization.
State law may require that the adopting parent have custody of a child for a certain period before obtaining an adoption decree. This requirement is designed to prevent premature action and to establish whether the best interests of the child will be furthered by the adoption.
Transracial Adoption The issue of transracial adoption (adoption of children who are not the same race as the adoptive parents) has come under close scrutiny by courts, legislatures, and the public. Americans are sharply divided on this issue. Is it a positive way to create stable families for needy children and well-meaning adults? Or is it an insidious means of co-opting members of racial minorities and confusing their sense of identity?
In 1972, when the number of African American children adopted annually by white families rose to fifteen thousand, the National Association of Black Social Workers (NABSW) issued its opinion on the subject. Igniting a furious national debate that continued in the mid-1990s, the association equated transracial adoption with cultural Genocide for African Americans.
The NABSW and other minority groups opposed to the adoption of African American children by whites claim that the children are deprived of a true appreciation and understanding of their culture. Their childhood is skewed toward white values and assimilation. Without a sense of racial identity and pride, these children cannot truly belong to the African American community; yet, by the same token, racism prevents their full inclusion in the white world.
Despite these arguments, some African Americans applaud the unconditional love and permanence offered by transracial adoptions. Transracial adoption supporters argue that it is much worse to grow up without any family at all than to be placed with parents of a different race. Because a disproportionate number of African American children are placed in foster care, mixed-race adoptions may be necessary to ensure permanent homes for some African American children. Transracial adoption may also be viewed as an opportunity to achieve Integration on the most basic level.
Controversies involving transracial adoption soon found their way to the courts. In 1992, the Minnesota Supreme Court upheld a district court's order to transfer a three-year-old African American girl from her suburban Minneapolis foster home to her maternal grandparents' home in Virginia (In re Welfare of D. L., 486 N.W.2d 375 [Minn. 1992]). Referred to as Baby D in court records, the child had been raised since birth by white foster parents who had been married for twenty-four years and had already raised three grown children. Baby D's birth mother placed her in foster care almost immediately after delivery and had not seen the child since. When no relatives could be found to claim the child, the foster parents decided to adopt the girl, whom they had grown to love.
When Baby D's grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter's three other children.) When the foster parents' petition to adopt Baby D surfaced, the grandparents vigorously opposed it.
The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An intermediate appeals court and the Minnesota Supreme Court agreed with the lower court that under the law, the Virginia grandparents must be granted custody. Despite the white foster parents' argument that they had provided security and loving care for the child, the grandparents' claim to Baby D was superior. Although many African Americans applauded the decision, some critics questioned the constitutionality of a law favoring same-race adoption.
A similar case in Lexington, Texas, produced a different result in 1995. Two foster parents, Scott Mullen and Lou Ann Mullen, who are white and Native American, respectively, applied to adopt two African American boys in their care. Initially, social workers for the Texas Department of Protective and Regulatory Services denied the Mullens' request, stating that departmental policy required them to seek adoptive parents of the same race as the children.
A civil liberties group called the Institute for Justice filed suit against the department on behalf of the Mullens. The institute also filed suits in other states, arguing that adoption decisions based on race are unconstitutional. The Texas department reconsidered and allowed the Mullens to adopt the boys despite race differences.
Another statute affecting transracial adoptions is the Indian Child Welfare Act of 1978 (25 U.S.C.A. § 1901 et seq.) (ICWA), a federal law giving special preference to family and tribal adoptions of Native American children. Prior to its enactment, nearly one quarter of all Native American children were removed from their parents' care and placed in foster care, through which some were adopted. ICWA's sponsors argued that the adoption of Native American children by white parents was not necessarily in the children's best interests and was unquestionably harmful to tribal membership. The law was intended to preserve Native American culture and to support an Indian child-rearing philosophy that relies heavily upon the extended family.
Under the 1978 law, tribes have jurisdiction over the proposed adoption of any Native American child living on a reservation. Extended families or tribal placements are given automatic priority over all other applicants.
Another law covering transracial adoptions is the Multiethnic Placement Act of 1994 (42U.S.C.A. §§ 622, 5115a, 5115a note). Sponsored by Senator Howard M. Metzenbaum (D-Ohio), the law prevents federally assisted child welfare agencies from screening prospective adoptive parents on the basis of race, color, or national origin. Although agencies may still consider the cultural or racial identity of children when making permanent placements, the law is intended to prevent discrimination and to speed the adoption process. The intention of the law is to give thousands of minority foster children who are eligible for adoption a greater chance of finding permanent homes.
Same Sex Adoption Several states have laws on the books that permit second-parent adoptions by same-sex couples, including Connecticut, the District of Columbia, Illinois, Massachusetts, New York, New Jersey, and Vermont. In 18 other states, trial courts have granted second-parent adoptions to same-sex couples. In other words, these states do not have laws permitting adoptions statewide, but adoptions may be granted in county family courts on a case-by-case basis. These states are Alabama, Alaska, California, Delaware, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington. In states where there is no statewide law permitting second-parent adoptions, the odds of a trial court granting an adoption vary from county to county. Many of the courts that approve these adoptions are located in metropolitan areas where judges may be more liberal than their rural counterparts.
While the majority of states do not specifically prohibit gays and lesbians from adopting children, three states prohibit the practice. Florida's law is considered the nation's toughest, because it prohibits adoptions not only by gay couples, but also by gay individuals. In 2000, an Arkansas law was passed which prohibited gays and lesbians from becoming foster parents. Mississippi also has legislation barring gay couples from adopting children. The ACLU is challenging that law.
Virtually all statutes make parental consent to adoption an indispensable condition. Most statutes set forth detailed requirements for the form and procedure of such consent. Ordinarily, statutes dispense with the parental consent requirement only when a parent has reached a serious level of unfitness that would be so significant as to terminate parental rights, or when such rights have already been judicially terminated.
In addition to parental consent, most states require a child to consent to the adoption if the child has reached a certain age, generally between ten and fourteen years.
The increasing number of divorces has resulted in deemphasis of the necessity of consent to adoption by noncustodial parents, the purpose being to ease integration of children of a former marriage into the family created by a subsequent marriage. Some statutes allow adoption without the consent of the noncustodial parent if that parent has been unable to or has failed to contribute to the support of a child for a certain period of time. Courts are more inclined to find abandonment—a common ground for termination of parental rights—in cases involving noncustodial divorced parents.
Unmarried Father's Consent Historically, if a child was illegitimate, most jurisdictions required only the consent of the child's natural mother to the adoption of the child. The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.
In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father need be obtained before an adoption could be finalized.
In Caban, a mother of illegitimate children and her husband filed a petition for adoption. The children's natural father filed a cross petition to adopt. The New York Surrogate's Court granted the mother's petition, and the natural father appealed. The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.
On appeal, the U.S. Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination. The unwed father in Caban had lived with the mother of the children for five years prior to the birth of the children. The Court held that he had the right to block their adoption by a man who subsequently married the mother.
Consents that are signed by the parents either immediately before or after the birth of the child may be particularly subject to challenge by the natural mother. Owing to the mother's weakened physical and mental condition, findings of involuntary consent frequently have been handed down in such cases.
A parent can forfeit the right to give or deny consent for the adoption of his or her child in certain instances. Abandonment, the nonperformance of the natural obligations of caring for the child, including support, is one such case. The Parent and Child will ordinarily be kept together by the courts when the parent exhibits a continuing interest in the child's welfare.
A finding of Abandonment may terminate a parent's rights and free the child for adoption with or without parental consent. A parent's rights may also be severed in cases of serious Child Abuse or neglect. Some statutes provide that a noncustodial parent cannot Veto an adoption; however, that parent is generally entitled to be heard when a court considers the case. This is particularly true when the parent has established some kind of family tie with the child, either by having been married to, or having lived with, the custodial parent or by taking the child into his or her home.
State law may require that if a child has been placed in the custody of an agency, the agency's consent is a prerequisite for an adoption. Similarly, consent of a guardian having custody of a child is necessary. The consent of the natural mother's parents may also be required if she is under eighteen years of age and unwed.
Invalid Consent If coercion or deception plays any part in the decision to terminate parental rights, the birth parent's consent may be ruled invalid. In the wake of the highly publicized battle over "Baby Jessica," it appears that regardless of the length of time or quality of a child's placement, the consent rights of the birth parents outweigh the best interests of the child.
In an agonizing case that divided the adoption community, Michigan couple Roberta DeBoers and Jan DeBoers lost custody in 1993 of Jessica, the two-and-a-half-year-old child they had raised from birth (In re Clausen, 442 Mich. 648, 502 N.W.2d 649 ). Courts in both Iowa and Michigan concluded that the necessary consent by Iowa birth parents Cara Schmidt and Daniel Schmidt was flawed. After a protracted legal battle, Jessica was ordered to return to Iowa to live with her biological parents.
Shortly after Jessica's birth on February 8, 1991, the DeBoers filed a petition in Iowa juvenile court to adopt her. The couple, who for ten years had tried to conceive or adopt a child, were named her temporary guardians and custodians. When Jessica was less than four weeks old, however, birth mother Cara Clausen sued to have her maternal rights restored. The birth father, Dan Schmidt, also sought custody.
Unmarried at the time, Clausen had signed a release-custody form, terminating her parental rights, approximately forty hours after giving birth to Jessica. (Iowa law requires a seventy- two-hour waiting period before waiving parental rights.) The man Clausen identified as the child's father—not Schmidt—also signed a release form. Seventeen days later, Clausen informed Schmidt that she had lied on the release form and that Schmidt was actually the father.
On March 6, 1991, Clausen sought to revoke the custody agreement, naming Schmidt as the child's father. Upon learning that he was the baby's father, Schmidt filed an Affidavit of Paternity and asked for a court intervention to prevent the adoption proceedings. Clausen and Schmidt were married shortly thereafter.
The district court and subsequent courts determined that Dan Schmidt was indeed the biological father and that he had not agreed to have his parental rights terminated. Because he had not abandoned the baby, it was not clearly in the best interests of Jessica to remain with the DeBoers. Also, the parental rights waiver signed by Cara Schmidt was invalid because the statutorily imposed waiting period had not been observed. Therefore, early in the legal skirmish, the court ordered the baby returned to the Schmidts.
The DeBoers continued to fight Jessica's removal from their custody. With the legal maneuvering and delays, the case stretched out over a twenty-nine-month period. By the end, the DeBoers had developed a close bond with Jessica, even though they knew from the time Jessica was an infant that their claim to her might not hold up in court. But with the passage of time, the DeBoers could make a powerful claim that Jessica needed them more than the Schmidts. After all, they were the only parents she knew. The DeBoers argued that it was in Jessica's best interests to remain with them, or she could face possible emotional and psychological damage.
After Iowa courts refused to change position on the custody, the DeBoers took their case to Michigan, hoping that the best-interests-of-the-child argument would be persuasive. However, Michigan courts also agreed that Jessica should be returned to her Iowa birth parents. She was delivered to the Schmidts on August 2, 1993, and renamed Anna.
Methods of Adoption
There are several types of adoption placement procedures. Foreign adoptions are affected by the policies and procedures of the adoptees' countries. Agency placement and independent placement are governed by statute, as is adoption by contract or by deed. Some people adopt through illegal purchase of a child or arrange to have a child by a surrogate mother.
Foreign Adoption Because of the scarcity of healthy babies for adoption in the United States, many U.S. citizens are pursuing adoption of orphaned and abandoned babies from foreign countries. Most U.S. parents with children in foster care do not relinquish their parental rights. Foster children in the U.S. may also be difficult to place because many are older and carry the emotional scars of physical or Sexual Abuse.
Since the 1950s, U.S. couples have adopted thousands of Korean children. The number of Korean adoptions is declining, however, reportedly because the Korean government is uncomfortable with its reputation as a baby exporter. On the other hand, children from South America are being adopted in greater numbers by U.S. citizens, as are children from China, Romania, and Russia. In these countries, poverty, natural disasters, abandonment, war, and collapsed governments have resulted in an increased population of needy children.
Each country has different adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. Countries may allow children to be escorted to the United States or may require adoptive parents to come and stay for days or even months to complete the adoption paperwork. The costs of adoption also vary from nation to nation.
Agency Placement In agency placement of a child, the arrangements are made by a licensed public or private agency. Such agencies exist solely for the placement of children, and part of their responsibility involves a thorough investigation of the suitability of the potential adoptive parents. Such an investigation is ordinarily quite detailed and takes into consideration the background of both child and prospective parents.Statutes generally provide for agencies that are operated or licensed by the government to act in an intermediary role between natural and adoptive parents. The method by which a child is transferred to an adoption or placement agency is by the execution of a formal surrender agreement that the natural parents sign. By surrendering a child to an agency, the parent relinquishes all rights to the child. The agency is then given complete authority to arrange for adoption. In arranging for an adoption, agencies must take into consideration such issues as whether a particular child is a proper subject for adoption, whether the proposed home is a suitable one, and whether the adoption is in the child's best interests.
Agency placement has three basic advantages: (1) It minimizes such risks as the adoption of nonhealthy children, the discovery of the adoptive parents' identity by the natural mother, and the natural mother's changing her mind about the adoption. (2) The suitability of adoptive parents is determined by a stringent investigation, which minimizes the risk that a child will be adopted by unfit parents. (3) Adoption through an agency minimizes fees incidental to the adoption.
One essential disadvantage of agency placement is that it involves a long, detailed process. The adoptive parents might be forced to wait for many months while they are being investigated as to their suitability. A second disadvantage of agency placement is that only a limited number of children are available for adoption through agencies.
Independent Placement In independent placement, or private adoption, a child is directly transferred from the natural mother, or her representative, to the parents seeking to adopt. This type of placement is ordinarily arranged by the natural mother's family or doctor. Generally, neither the natural nor the adoptive parents are thoroughly investigated. The adoptive parents often arrange to pay all medical bills incidental to the pregnancy and birth, in addition to legal expenses. Private adoptions are lawful in most states.
Like agency placement, independent placement has both advantages and disadvantages. Private placement facilitates the adoption of a child by parents who might otherwise be forced to endure an extended waiting period or who might be unable to find a child through agency channels because of stringent requirements or mere nonavailability of adoptable children. As with all adoptions, there is an inherent risk that the natural mother might change her mind and never complete the adoption procedure. With some private adoptions, the natural mother remains anonymous. With others, her identity is known to the adoptive parents at the outset.
Independent placement aids mothers who do not have financial resources, by arranging for the payment of medical expenses by the adoptive parents. Such a procedure can, however, lead to a black market if not carefully monitored.
Other disadvantages of private placements are the risks of adoption of an unhealthy child or of nonsuitability of the adoptive parents.
Some states prohibit lawyers from obtaining babies for adoption by clients under any circumstances. Attorneys, however, are ordinarily permitted to accept fees for handling the legal aspects of adoption.
Surrogate Motherhood During the 1980s, many infertile couples turned to Surrogate Motherhood as an alternative to traditional adoption. A surrogate mother was paid a fee to bear a child conceived through Artificial Insemination. Once the child was born, the surrogate mother agreed to terminate her parental rights in favor of the sperm donor, typically the husband of the woman unable to have children. For public policy reasons, paid surrogate motherhood has been denounced as an unacceptable means of buying and selling babies.
The wrenching "Baby M" case proved to be the ultimate downfall of surrogate motherhood contracts. In in re baby m, 109 N.J. 396, 537A.2d 1227 (1988), Mary Beth Whitehead entered a written agreement to bear the child of William Stern, whose wife, Elizabeth Stern, was unable to have children. Whitehead was to be paid $10,000 for her services. When the baby girl was born in 1985, Whitehead refused to give her up and fled with the infant to Florida. Four months later, she was apprehended by authorities, who gave the baby over to the Sterns.
Despite Whitehead's efforts to regain the child, the New Jersey Superior Court stripped her of parental and Visitation Rights and allowed the Sterns to adopt the baby, whom they had named Melissa. The decision had little to do with adoption policy but centered primarily on contract enforcement. The court ruled that Whitehead was obligated to honor her contract with the Sterns.The New Jersey Supreme Court reversed the lower-court decision, declaring that surrogate motherhood contracts are unenforceable because they violate public policy. The Sterns were allowed to maintain custody of Baby M, although the adoption was voided and some of Whitehead's parental and visitation rights were restored. After the decision, most states passed legislation to prohibit surrogate motherhood contracts altogether.
Adoption by Contract or Agreement Generally, an adoptive relationship cannot be formed by private contract, either express or implied. Although adoption contracts are not usually considered to be injurious to public welfare, they are discouraged on the basis of the principle that a parent should not be permitted to trade away his or her child.
A court may, however, choose to treat a contract of adoption as an agreement to be enforced, with the outcome being equivalent to a formal adoption. The courts have upheld contracts between parents and institutions. In addition, in a number of states, an adoption contract between a natural parent and an institution that provides that the parent is not to be informed of the child's location is enforceable.
Since courts are not eager to deprive natural parents of the right to care for a child, adoption contracts are not enforced when they are in conflict with the welfare of the child. Some states provide that a contract made by one parent alone, absent a showing of clear consent by the other, is not valid. The procedure for adoption by a written declaration or deed is permitted in some states. Ordinarily, it must be properly recorded before the adoption will be valid.
Revocation A court will allow an agreement for the adoption of a child to be broken by a natural parent if the circumstances warrant it, such as when a parent was forced into an adoption agreement.
The court has discretion over whether to permit revocation of an adoption agreement. In such cases, the court will scrutinize the circumstances under which the parent gave consent as well as the parent's reasons for revoking the contract.
Consequences of Adoption
Adoption ordinarily terminates the rights and responsibilities of the natural parents to the child. The death of an adoptive parent does not restore the rights of the natural parents.
Adoption creates the same rights and responsibilities between a child and adoptive parents as existed between natural parent and child. An adopted child is entitled to the same rights as a natural child. When an adult is adopted, however, the adoptive parent does not assume the usual duty of support.
State law governs whether or not the name of a child will be affected by adoption. When a minor child is adopted, his or her legal residence is changed from that of the natural parent to that of the adoptive parent.
Inheritance A state legislature has the authority to impart or remove inheritance rights of adopted children or adoptive parents. Statutes usually provide that adopted children can inherit from adoptive parents in the same capacity as natural children and, conversely, adoptive parents can inherit the property of an adopted child who predeceases them.
Revocation of Adoption
If an adoption decree is acquired by Fraud, it may be revoked. In addition, in the absence of the requisite consent of all concerned parties, an order of adoption is void. After a decree is revoked, a child assumes the status she or he had prior to the adoption proceedings.
Summary of Adoption Procedure
The formal steps in adoption of a child are generally uniform in all states.
Notice Notice of adoption proceedings is given to all parties who have a legal interest in the case except the child. In the case of Illegitimacy, both natural parents should be given notice if they can be located.
Some statutes provide that a parent who has failed to support a child is not entitled to notice. Ordinarily, a parent who has lost custody of a child in a Divorce or separation case is, however, entitled to notice. Similarly, an adoption agency that has custody of the child is entitled to notice.
Petition The parents seeking to adopt must file a petition in court that supplies information about their situation as well as the situation of the child. The filing of a proper petition is ordinarily a prerequisite to the court's jurisdiction.
The petition indicates the names of the adoptive parents, the child, and the natural parents, if known. In addition, the child's gender and age are stated, and some states mandate that a medical report on the child must also accompany the petition. An example of such a petition is found on page 98.
Consent Written consent of the adoption agency or the child's natural parents accompanies the petition for adoption. Consent of the natural parents is not required if their parental rights have been involuntarily terminated as a result, for example, of abandonment or abuse of the child. Hearing A hearing is held so that the court may examine the qualifications of the prospective parents and either grant or deny the petition. There must be an opportunity for the parties to present testimony and to examine witnesses at such a hearing.
Adoption proceedings are confidential, so the hearing is conducted in a closed courtroom.
Ordinarily, the records of an adoption hearing are available for inspection only by court order. Confidentiality is thought to promote a sense of security for the child with his or her new family.
Probation Most states require a period of Probation in adoption proceedings. During this period, the child lives with the adoptive parents, and the appropriate state agency monitors the development of the relationship. The agency's prime concern is the ability of the adoptive parents to properly care for the child. If the relationship is working well for all concerned parties, the state agency will request that the court issue a permanent decree of adoption.
If the relationship is unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state.
Decree An adoption decree is a judgment of the court and is given the same force and effect as any other judgment.Birth Certificate Following the adoption proceedings, a certificate of adoption is issued for the adopted child, to replace the birth certificate. It lists the new family name, the date and place of the child's birth, and the ages of the adoptive parents at the time the child was born.
Generally, the certificate of adoption does not indicate the names of the child's natural parents or the date and place of adoption. A child may never know that he or she was adopted unless the adoptive parents reveal the information, since the old birth certificate is sealed away and may be opened only by court order.
Right to Information on Natural Parents
Ordinarily, all information concerning an adopted child's origins is sealed, in compliance with the court adoption proceedings, to facilitate development of a relationship between the adoptive parents and child free from the natural parents' influence.
Most state statutes deny adoptees access to records that disclose information about the natural parents. Often, the natural parents make their consent to the adoption contingent upon the condition that no information about them should ever be revealed.
In recent times, because of a growing public interest in tracing ethnic and family backgrounds, many adoptees, as adults, have been calling for the right to obtain access to sealed adoption records.
The adult adoptees recognize that a disclosure of this kind of information could be traumatic to minor adoptees, but they contend that lack of access could cause serious psychological trauma to them as adults. In addition, they cite medical problems or misdiagnoses that could be caused by absence of genetic history, lack of religious identity, and fear of unwitting Incest.
Adult adoptees contend that most adoption statutes do not make a distinction between adoptees as minors and later as adults, which causes the adults to be deprived of the right to trace their background. In addition, the adults allege that they have been denied Equal Protection of law because their status precludes them from receiving medical information readily available to nonadoptees.
Various approaches are being used to resolve this problem. One approach involves the enactment of a legislative requirement that public and private adoption agencies be required to open their records upon request to adults who were adopted as children, with certain limitations. For example, if the child had been placed by the natural parents prior to the effective date of the legislation, the natural parents could prevent the adoptee from seeing the records.
The issue of right to access to adoption records by adoptees when they reach adulthood also encompasses the legal consideration of the natural parents' right to privacy, which could be violated if free access to sealed court records were given to adult adoptees. The adult adoptees' right to know must be balanced against their natural parents' right to privacy. The way to achieve such a balance, however, has never been clearly determined.
In September, 1999, Tennessee's Supreme Court overturned the Tennessee Court of Appeals ruling in Doe v. Sundquist, 2 S.W.3d 919 (Tenn., Sep 27, 1999) (NO. 01-S-01-9901-CV00006), which challenged a law passed in 1995 that unsealed both adoption records and original birth certificates to adult adoptees. Earlier, the 6th Circuit Court of Appeals had ruled in favor of the state and opined, much to the dismay of sealed records advocates: "A birth is simultaneously an intimate occasion and a public event—the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth," Doe v. Sundquist, 106 F.3d 702, 65 USLW 2527, 1997 Fed.App. 0051P (6th Cir.(Tenn.) Feb 11, 1997) (NO. 96-6197). The U.S. Supreme Court, however, elected not to hear the Tennessee case.
Carp, E. Wayne, ed. 2002. Adoption in America: Historical Perspectives. Ann Arbor: Univ. of Michigan Press.
DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.: Messner.
Marshner, Connaught, ed. 1999. Adoption Factbook III. Washington, D.C.: National Council for Adoption.
Melosh, Barbara. 2002. Strangers and Kin: The American Way of Adoption. Cambridge, Mass.: Harvard Univ. Press.
Rundberg, Gayle D. 1988. How to Get Babies through Private Adoption. Bend, Ore.: Maverick.
Sloan, Irving J. 1988. The Law of Adoption and Surrogate Parenting. London: Oceana.
n. the taking of a child into one's family, creating a parent to child relationship, and giving him or her all the rights and privileges of one's own child, including the right to inherit as if the child were the adopter's natural child. The adoption procedure varies depending on whether the child comes through an agency which handles adoptions or comes from a stranger or a relative, and on the age of the child and the adoptive parent or parents. The hopeful adoptive parent must file a petition, which may be handled by the adoption agency. Natural parents must either give binding written permission for the adoption or have abandoned the child for a lengthy period of time. An investigation will be made by a county office (probation or family services) as to the future parents' suitability to adoption, their relationship status, their home situation, and their health, as well as the best interests of the child. If the child is old enough to understand the procedure he or she may have a say in the adoption. Finally there is a hearing before a local court judge (called "surrogate" in some states) and an adoption order made. In many states a new birth certificate can be issued, with the adoptive parents listed as the parents. If there is an adoption of an adult, the adopting adult usually must be several years older, based on the state law. In recent years, there has been much controversy over adoption by single parents, including gays and lesbians, with the tendency toward allowing such adoptions, provided all other criteria beneficial to the child met. (See: adopt)
adoptionthe legal process by which the rights and obligations of a child's natural parents are extinguished and equivalent rights and obligations are vested in the adoptive parents. The effect of an order is to have the child treated as if it had been born as a child of the marriage. Adoption prevents a child from being illegitimate thenceforth. Any person under 18 who has not been married can be adopted. A person adopting children (not already a parent) must be over 21. The consent of a father of an illegitimate child is not required. The court can dispense with a parent's consent. A husband and wife may adopt the legitimate children from the wife's former marriage. A local authority or approved adoption agency can apply for an order freeing a child for adoption that renders unnecessary the need later for difficult petition procedure. The effect is to extinguish parental rights and vest them in the adopters. The child succeeds to the new parents and does not succeed to the former parents.
In Scots family law, there is a similar statutory procedure. A child adopted under an adoption order made in the UK will become a British citizen if the adopter (or, if more than one, one adopter) is a British citizen. An adoption order made outwith the UK in favour of a British citizen will not give the adopted child automatic British citizenship; this may be gained by registration or naturalization. There are provisions to control adoptions from abroad.
ADOPTION, civil law. The act by which a person chooses another from a strange family, to have all the rights of his own child. Merl. Repert. h.t.; Dig. 1, 7, 15, 1; and see Arrogation. By art. 232, of the civil code of Louisiana, it is abolished in that state. It never was in use in any other of the United States.