Articles

The Adoption Option

Couples who have tried to have children without success eventually may conclude that it just is not going to happen. The house is ready, the baby's room is set up and furnished, even the college fund has been started. These sincere parents-in-training are motivated and ready. Yet after all the dreams, medical consultations and fertility drugs, there's just one small problem: no baby. Many couples - and also increasingly singles -- in this situation turn to consider adopting a child.

Adoptions are governed very strictly by a number of statutes, regulations and court cases. In my last column I mentioned adoption in connection to lawsuits to determine paternity ("Paternity Part II"). Today I will do a brief overview of legal options for those who want to adopt a child - the "adoption option".

There are three basic legal adoption procedures: Agency adoptions, private adoptions, and step-parent adoptions. In all three procedures, certain steps must be taken to legally free the child from any legal claim by his or her natural parent.

First, a court order must be obtained which terminates all legal rights of the natural parent. This can be done through a formal consent to the adoption signed by the birth parents. A petition to relinquish all parental rights is filed, together with a consent to the adoption. The court files must show consent by the birth parents, any "alleged" father, the legal guardian of the child, and the child if he or she is fourteen years old or older. If an private or public agency has legal custody of the child, it must consent to the adoption. The consent documents are filed with the petition for adoption. The consent states that the parent understands the legal effect of the consent, and that it will result in the termination of all parental rights.

The consent and petition to relinquish parental rights may be filed even before the child is born. The court proceeding to terminate rights should be filed as soon after birth as possible. The hearing can be held 48 hours after the birth. State and county procedures must be strictly followed. Failure to comply with all legal requirements may open the door to a law suit months or even years later to set aside the order terminating parental rights; if that happens, the adoption itself will probably be set aside. We all have seen television news reports of heart-rending cases where this has happened.

Notice of the termination proceedings must be given to the natural father, even if his whereabouts or name is unknown. How can this be done? The notice of the court case can be legally served on the natural father, even if no one knows who it is, by publication of the notice in a local newspaper.

Here's something that the relinquishing parent often does not realize: termination of the parental rights does not by itself terminate back child support. However, the parties to whom the support is due (e.g., the mother, or the state if she had been on public assistance) can waive their right to child support arrears. Other than arrears, a termination decree divests both parent and child of all legal rights and duties to each other.

The relinquishment is formalized only by court order after a hearing. It is possible to schedule a hearing for approval of the relinquishment at the same time that the father's rights are terminated by default after publication of notice.

What happens if the birth mother or father objects to termination of their parental rights? In that case, a court trial is scheduled to take live testimony of witnesses. At such a trial, the objecting parent's rights will be terminated only if the judge rules that termination is in the best interest of the child, and that the parent failed to perform their parental duties under circumstances showing a substantial lack of regard for their obligations as a parent. The nature of this evidence often will show significant and often shocking parental abuse or neglect. Yours truly has presented over a hundred cases of this type.

If the objecting parent hires a lawyer and vigorously fights in court, these cases can be time consuming and expensive. Putting on the testimony of caretakers, relatives, foster parents, doctors, and police can take several days of court time, and many additional hours of pre-trial preparation. However, if the parent fails to show up at the hearing their rights can be terminated by default.

Once all parental rights to a child have been terminated by consent, default or trial, the child is freed for adoption by court order. If this is a private adoption proceeding, The parties must get a pre-placement report before the child is placed with the prospective adoptive parents. If the report has been prepared before birth, it can hopefully be filed before the baby is released from the hospital, so the adoptive parents can have temporary custody pending the final adoption order. After placement, one to three months may pass while a post-placement report is prepared. After it is filed, a hearing is scheduled to enter the final decree of adoption.

In agency adoptions, a licensed child placement agency does most of the work. It gets termination of the birth parents' rights, and a custody order authorizing placement for adoption. The agency then selects the prospective adopting parents, and can assist the parents in filing the adoption petition. The agency usually provides the court with the pre- and post-placement reports.

The procedure for step-parent adoptions is somewhat more streamlined. In this case, most often the mother has married or remarried, and her child has little or no contact with the natural father. The couple must have been married for more than one year. The mother's new husband wants to adopt the child, and usually is already thought of by the child as "daddy." If the natural father consents to the adoption, no pre-placement report is required. If he does not consent, his rights can be terminated after only after a trial, as described above.