Creating a Family: Talk about Adoption & Foster Care

Legal Process of Domestic Adoption: What You Need to Know Before You Adopt

December 04, 2020 Creating a Family Season 14 Episode 48
Creating a Family: Talk about Adoption & Foster Care
Legal Process of Domestic Adoption: What You Need to Know Before You Adopt
Creating a Family: Talk about Adoption & Foster Care
Legal Process of Domestic Adoption: What You Need to Know Before You Adopt
Dec 04, 2020 Season 14 Episode 48
Creating a Family

Do you know how the legal process of adoption works? How do you get an original birth certificate? How do you get a social security number for your adopted child? We talk with Brinton Wright, an adoption attorney and Fellow in the Academy of Adoption & Assisted Reproduction Attorneys about the legal and social implications of adoption.

In this episode, we cover:

  • Different types of adoption.
  • The difference between voluntary and involuntary termination of parental rights.
  • What is meant by a "legal risk" adoption.
  • What is meant by open adoption.

Support the show (

Show Notes Transcript

Do you know how the legal process of adoption works? How do you get an original birth certificate? How do you get a social security number for your adopted child? We talk with Brinton Wright, an adoption attorney and Fellow in the Academy of Adoption & Assisted Reproduction Attorneys about the legal and social implications of adoption.

In this episode, we cover:

  • Different types of adoption.
  • The difference between voluntary and involuntary termination of parental rights.
  • What is meant by a "legal risk" adoption.
  • What is meant by open adoption.

Support the show (

This is an automated transcription.  Please forgive the errors.

Welcome, everyone to Creating a Family talk about adoption and foster care. I'm Dawn Davenport, your host and the director of Creating a Family. Today we're going to be talking about the legal process of adoption, most specifically, what you need to know before you adopt. We'll be talking today with Britton Wright. He began practicing adoption law in North Carolina after adopting two children, both of whom are now married adults, congratulations on their Britain. Since then, Britain has represented many adoptive parents, many birth mothers, and has worked to improve North Carolina adoption laws. Welcome Britain to creating a family. Thank you. I should also add that you are a member of quad a and you want to tell us what quad A stands for?

Yes, it used to be the American Academy of adoption attorneys. But three or four years ago, the name was changed for the Academy of adoption and assisted reproduction attorneys.

Excellent. Yes. And it does go by quad a but it is an organization of attorneys that practice adoption and assisted reproductive law. All right, so let's jump in. And one thing I always tell people is we encourage people when they have questions, especially if they're not working with an agency that has an attorney, that they need to seek help from an attorney. And when you seek out from an attorney, it's important that they be an attorney that specializes in adoption law. And that's not necessarily the same thing as a family law attorney. So keep that in mind as you as you move forward. All right. So adoption is the legal process of transferring the permanent parent child relationship from the parents of birth to the adoptive parents. And adoption provides the adoptive parents the rights and responsibilities of a legal parent as if the child had been born to them. And that the adoptee becomes their legal becomes the legal heir to the adoptive parents. So let's start by saying what kinds of adoption are there?

Well, it depends on how you slice it up. Because adoptions generally divided into agency adoptions, and those are adoptions where a birth mother interests her baby to an agency, and the agency interests the baby to the adopting parents, or independent, also called direct placement adoptions, on the other hand, where the birth mother interests her baby directly to the adopting parents. And so we've got this to two things parallel. But we also can divide up adoptions into relative and non relative adoptions, depending on whether the birth mother or birth father and the adoptive parents are related to one another. And we can also divide up adoptions between in state and interstate adoptions, depending on whether the child is being adopted by people who live in the same state where the child is born, or whether the child has been adopted as being adopted by people who live in a different state. And then they're also adoptions that have to be done under a federal procedure still in state court, but under federal procedure, because the child is considered to be an American Indian Child. And that's

kind of a separate thing. And we really won't go into too much detail on that. Because that if that's involved, then you need to be working with someone who knows a lot about the Indian Child Welfare Act, okay.

When you slice up adoptions, those four different ways, you get 16 kinds of adoptions, because it could be an agency, non relative interstate adoption. And so, for instance, and so, all of those are a little different. But they all have rules that you have to follow. And, you know, Dawn has already given my main theme to which is get a lawyer.

Yeah. And often, if you're working with an agency, the agency has a lawyer, and you will be working with the agency's lawyer. But adoption is an area of law. It's a specialty of law. So that's important to to recognize that and you're not expected to know everything. But it does help to have I think, a general overview before you get into it. And one thing that I think is almost universally not known, outside of those of us who are hurting Is that adoption is governed by state law. And therefore, that that means that really we have 50 plus the territories and plus DC and everything else, many adoption laws that work in the United States. So it's important for you to consult with an attorney, or an attorney that works for your agency that knows the laws, and the state where you or the expectant parent or the birth parent resides, in order to know exactly what laws should govern. But I have a question about that. Do the adoptive parents have to comply with the laws of the state where the expectant parent resides? Or where the baby is born? Or where they reside?

Well, the answer is probably yes.

A little baby a little B, little c?

Well, you don't want to break the law in any jurisdiction. When you start looking at to proceed here you're going to use, it could be in the law or the baby's born, or it could be where the adopting parents live. And that's the choice that sometimes has to be made. Or it's sometimes it's a choice that can't be made, because the state law with a baby's born says you have to do this in our court using our procedure.

So the answer is it depends. That's right. Okay. So I've just said that that adoption is governed by state law, are there any federal laws other than the Indian Child Welfare Act that govern adoption?

Well, primarily, it is Indian Child Welfare Act, and the servicemembers civil Relief Act, because if there is a birth father, who belongs who's in the military, and is on active service, that birthfather has rights under under the servicemembers civil Relief Act, which is enacted, basically, it exists to make sure that if you sue somebody in the military, and they're all fighting a war, you can't get a default judgment against them, because they don't show up in court. And it's broad enough to cover adoptions.

Oh, that makes sense. Okay, you had mentioned and that it is possible. In fact, it is fairly common to adopt a child in another state you live in one state, the child is born in a different state interstate adoption. And there is a compact and the interstate compact on the placement of children. That's a fancy name, but that is going to impact the parents in the process. If you adopt a child in another state, what is the interstate compact on the placement of children? And and how does it impact parents who are adopting a child from a different state?

Well, the interstate compact is not a federal law, but it kind of feels like it is. It is an agreement among all the states that regulate the taking of a child from one state to another for the purpose of adoption. And the it exists to make sure that a child doesn't fall through the cracks the child's place for adoption in state a, and then goes to state B. And then the people who have the child in state B Six years later, or five years later show up at kindergarten and want to enroll the child and the child hasn't even been adopted. So it's a system where each state has an office that is in charge of reviewing interstate adoptions. And, and so it's a gatekeeper. They want to make sure that, that everything is is being done correctly, edits are actually can be in adoption, in the state where the baby is going or there'll be an adoption in the statement maybe comes from, and it will apply everywhere. And also that once the baby goes from state a to state B, that there's some adoption agency that's following the welfare of the baby after the fact. So that if, if there's no adoption, then this agency can report that to the state and something can be done.

And this would apply only to infants, or does it also apply to older children who have been adopted from another state, and

it applies to all children? Okay.

All right. And the main thing you need to know as a parent is that this icpc as it is known, will impact you have to comply with the steps required by that state. And what it practically means is that there will be if you travel to another state to pick up a baby born in that state or a child born in that state. You need to allocate enough time your attorney or your agency will Working through the process, but you need to allocate and expect to spend a certain amount of time in that state to allow this process to work through. How about what do you recommend for people? I know there is absolutely no guarantee. But what in general, do you recommend for people to plan on? How long do they recommend that they say that they plan on staying?

Generally, I tell folks to plan on having permission to take the baby back home to their state, a week to 10 days after the baby's discharged from the hospital, if we're talking about a newborn. And we we, we try to beat that. I mean, part of this is, is managing of expectations. So it's sometimes possible for it to be as short as three or four business days. But it's not something anybody's in a position to guarantee.

Right? Yeah. And it is not always within your control, either, since you're working with the interstate compact act for a department in another state. So you had been practicing adoption law for a long time? What are some of the primary reasons you see, with expectant parents that you work with for making an adoption plan for their child? Well, there's

there's really only one reason and that is because the especially in terms of the birth mother, her circumstances make it so that that that's essentially her only choice. About half of the adoptions I work on, I represent birth mothers, and the other half I represent adoptive parents. And in my experience, you know, birth mothers, nobody wants to place a baby for adoption, but birth mother has to consider her needs has to consider the child's needs has to consider the needs of any other children that she has. And sometimes it just becomes apparent that adoption, even though she doesn't want to do it is best of all the options that she has before her.

Mm hmm. And it is no it's no one goes into this with the expectation no one goes into a pregnancy with the expectation that this is their their plan A. So it is usually always a crisis situation or something that is that is deeply thought through. And as you say, at that point, she believes it is her only option.

That's right. And I make it a point never to ask my birth mother client, do you want to place this phone for adoption? It's always in terms of is this the choice that you feel like you have to make?

And we always hope that they have received unbiased independent counseling that includes all of our options, including the option of how she could make parenting work. That's important that for us to think about when we're talking about birth parents as well are for this case, expectant parents. All right, let's talk about adoption, the legal process of adoption from the birth parents perspective, or they may well be expected parents, since we generally don't call them birth parents until after the birth. So let's talk about the legal process for the expected or birth parent perspective. And we'll start with the voluntary versus involuntary relinquishment. What do you mean by that?

Well, a voluntary relinquishment or surrender or consent to adoption, is a birth mother deciding that this is the road she has to go. And she, she signs the papers. involuntary is an entirely different thing. It could mean that the Department of Child Protective Services has taken the child and and has terminated the mother's rights and turned it into an agency adoption and replacing the baby that would be an involuntary situation. Another involuntary situation would be if birth mother voluntarily places a baby, but the the biological father has not consented and his rights have to be resolved in the in the court in the adoption. And so it that if he doesn't consent to the adoption, then the termination of his rights may be involuntary on his behalf.

is we talked about termination of parental rights is that the same thing as an involuntary relinquishment as

it is. Some states do a termination of parental rights in all adoptions is two stages that the The parents consent or not consent, but the court terminates parental rights. And then that court or another court, here's the adoption and issues and adoption decree in other states in North Carolina is one of those. It's a one step thing where when the adoption decree is issued, that terminates the parental rights of the birth mother and then the birth father.

Okay, so that again goes back to our, it depends on what state you are in.

Okay. It depends a lot, the different states, adoption laws are amazingly different from one another,

they really are. And here we're going to come to another example of where they are often very different. And that is, when can an expectant mom, voluntary are in a birth mom, depending on when we're talking about voluntarily relinquish her parental rights,

it's going to depend on the statutes of the state that she is, relinquishing under a birth mother in one state can elect to consent to an adoption under the law of another state if that's where the baby is going. So sometimes she has a choice in that. But there are states that say, birth mother can sign before the baby's born, but can revoke the relinquishment anytime after the baby's born up to a certain time or up to a court hearing or something. There are states that say you have to wait so many hours like 72, after the baby's born and birth mother can sign a consent to adoption. And it is irrevocable at that point in time always subject to proper duress. But when a birth mother can say I was forced to sign it, she could always come in and say that, but in general in the absence of fraud or duress, some of these states and the moment that she signs it's irrevocable in North Carolina is a different state. And there are other states that follow this pattern, where a birth mother will sign a consent to adoption. And a certain number of days after she signs the consent, it becomes irrevocable in North Carolina, generally seven days, it varies because it can end on a weekend or holiday. But they're very different. That's one of the things people need to think about it in an understated often is have the lawyers talk about which is the best state's lawyers.

Okay. You know, I think it's important to also note that the time that is written in the different statutes for how long the mother has to before she can sign relinquishment papers, or voluntary relinquishment papers is a minimum, she can take longer if she wants to. I think that sometimes it parents get confused. adoptive parents get confused about that. But there is a minimum of how long she has to be able to sign after the fact. Is there any difference for the we've talked about the the birth mom voluntary relinquishing her rights, and in the laws specifying how many hours after birth? She has to wait before she can make she could sign those papers? is there is there anything different or birth fathers treated differently than birth mothers?

Or fathers are often treated differently? And that in many places, many states, a birth father can consent to the adoption before the birth of the baby and the birth mother can't.

Okay, and are there is that irrevocable? Do the birth fathers also have a revocation period that they that in these no course you're speaking for every state here, but so you may not know all 50 states plus the territories, but from your experience? Do most states give fathers also a revocation period or no.

states that have a revocation period for the birth mother usually have one for the birth father as well. Okay. And if the birth father signs long enough before the baby's born, it's not uncommon that a birth father's consent has become irrevocable before the baby is born.

Okay, so the period is starts running from when he when he signs as people can tell this adoption is is a legal process. Do expectant parents or if it's after birth, birth, parents have to have their own legal representation we were talking about what the parent the rights are for the adoptive parents, but but birth parents also need to have their rights protected. So do they have to have separate legal representation

I always recommend that and as I said, about half of the adoptions that I work on, I do represent birth parents. There are good reasons for that it protects the birth parents rights. later on. And you will recall, I said, Well, what if there's fraud or duress, it's much harder to prove fraud. If the birth parents have their own lawyer, because they're not an infestation to say, I didn't have a lawyer, they had a lawyer, their lawyer tricked me. I want my baby back. You it helps to make sure it's done. Right. It helps to make sure that everybody's protected.

Okay, so that is a question to make sure you ask your agency or your attorney? What if the birth parent is a minor? We treat minors differently under the law. So what happens then, if a birth parent is a minor, do their parents have to give consent?

It depends on the state law. There are states that say that, that if you can have a baby, you can consent to the adoption. There are other states that may say that the birth parent has to come into court and and be questioned by the judge and consent. And I say that in case of an interstate adoption, I worry a little bit about an under aged child making the election to have a different states law apply. So so it does come into play. Even if the state where you're going to file the adoption has a rule that a minor consignment option can set question being kind of minor elect to have another state's law apply and that I don't think anybody's ever answered that question. So we're trying to be conservative?

Yeah, something to be considered with if the birth parent is a minor. All right, we've talked about the at this point, it's after the birth so that they we've talked about birth parents voluntarily relinquishing their parental rights. How long? Or do they have a period of time after they sign the relinquishment papers to change their mind? Again, now, assuming there is no fraud or duress, because they obviously have the right to change their mind or obvious or not, they do have the right to change their mind if they can prove that that that the signature was obtained fraudulently or under duress. But absent that, how long do they have after they signed the papers to change their mind and say, I've changed my mind I want to parent.

In some states, when when the adoption, consent or relinquishment, or surrender is signed, it is irrevocable. And it doesn't matter if the birth parent changes her mind, it's too late. There are other states that have a varying period of time, it can be anywhere from a week to a month at

that at that point that she has to change her mind, just because she changed her mind, does she have to have a valid whatever valid would be but legally valid reason? Or can they just be I've changed my mind.

If you're within the period that you're allowed to revoke consent, you don't have to give a reason you have the right to do that. And in many states, that means you have the right to immediate return to the child. And in at least one other state, they you can still argue over custody of the child after there's been a revocation of a consent. So it's going to depend on the state law.

And that's a huge distinction, especially from a birth parent standpoint. What happens if the expectant mom is not able to identify the baby's father,

most states require that the Father be given notice of the adoption if he doesn't consent to the adoption. Also, it's good practice in many cases to even if birth mother gives a name for a father, you may wish to resolve the rights of any unknown father in case she left somebody out. And the way that's usually handled is through publication of notice in a newspaper. Another way to do it in some states are having in some states, the lawyers there like it, and that is a putative father registry, where if a man engages in sexual intercourse with a woman, he's deemed to know that she might have a baby. And if he wishes to have direct notice, then he can go to the state and and make a request to be included on the putative father registry of that state to make sure that He, he gets noticed of any adoption. In some states. The law says that if he doesn't do that he's consenting automatically to the adoption. So it's another another thing that varies state to state.

Yeah. And so that is again, reason that your agency or your attorney will be able to advise you on what they need to do on your behalf, or on the birth mother's behalf as well. That point is big news, everyone, the Jackie being Family Foundation has provided us with scholarships for free access to five of our most popular courses, you can find these courses and the coupon code at the website Bitly slash j, b, f support that is Bitly, bi Slash, all cap, j, b, f, then cap s for support. So j. d, f s, that's all capitalized, and you PP o RT. Again, the coupon code to get to these courses free is going to be on that page as well. And the courses are raising resilient kids with Dr. Ken ginsburg. raising a child with ADHD to a successful and healthy adulthood with Dr. Ned Halliwell, unexpected stresses for newly adoptive parents practical solutions to typical food issues with Dr. Kasha Rao, and parenting children who have experienced trauma with Karen bookwalter. Make sure you go to the Bitly slash j. b. f support to get information on these courses. All right, we've talked about the legal process as it as it works with expectant and birth parents or as it applies to expected in birth parents. Let's talk about it now from the adoptive parent perspective. And as far as I know, all states require a home study and a background check. Is that right? I'm I just don't know of any that don't do is that universally required a home study in the background check.

It is certainly universally required where people who aren't related to each other are the the parties and the adoption. Most states have exceptions for say a birth mother who places the child with her parents for adoption. And many times you don't need a home study for that even though there may be a requirement that an agency follow up after the fact.

Gotcha. Okay. So So home study and background were not necessary are for relative adoptions may or may not be depending on the state law. And I would assume the same would be for step parent, adoptions,

stripper and adoptions. There are states don't require any home study at all. There are states that that don't require home study, but also require that that an agency follow up and make a report to the court to make sure everything's good. There are other states where the court can waive that, for instance, if the child has been with the step parent for for a number of years, the requirement of even the follow up by the agency can be waived.

Okay, do adoptive parents have to work with an adoption agency? Or do they have the option to work with an Adoption Attorney without the presence of an agency? Or does it depend on what states what state they live in?

And all of those things?

There are a lot of the all of the above type questions, right.

But there are states that are what we call agency states where the law pushes the everyone to go through an agency for the adoption. There's many states though, where if an adopting parent or prospective adoptive parent can find a an expectant parent and make an adoption plan they can go ahead and do that without the intervention of an agency.

Okay, but they're working through an attorney Okay. And then I believe that there are different different states have different requirements or what they will allow adoption attorneys to do whereas some states will say that an adoption attorney can do the legal part but they cannot be involved with matching a or finding and expectant parent that is considering adoption and and suggesting that parent to the adoptive parents or vice versa, and others. Other states allow the Adoption Attorney to act in many ways like in a like an agency.

Those are Right, right.

Yeah, as we go back to what Brenton said at the very beginning is that the state laws are really very different in what they will allow. And I just want to put in a quick plug for how important I think counseling is for birth parents. And they are expected parents who are making the decision or birth parents after the birth, that most agencies, although not all, but most agencies do, require or do provide, I should say, required to provide counseling for birth parents, and some continue to provide that long after the birth, and some have no time limit on it. And when working with adoption attorneys, that is something that often adoptive parents have to pay a cart have to pay separately, but I think it is just crucial that that counseling be provided. So I will throw that in at this point for what it is worth.

I advise my clients to offer counseling, as being, among other things, besides being the right thing to do, can be something in their interest, because it's important to understand that when a mother places her child for adoption, it is the hardest thing she's going to do in her life ever. And when when she is prepared, it makes it a little bit better, because there are young birth mothers. And I see this all the time, that make the assumption that they can essentially go through the process and stay in denial, and it's not going to be a big deal. But the problem there is that when the baby's born, the baby becomes the center of the universe. And everything changes. And if birth mother has been prepared by counseling, she, she's much in a much better position to deal with that. And there's also somebody who can consider with her after the baby's born and say, yes, the baby is the center of the universe. But remember, we discussed your reasons for placing a child for adoption. And let's let's go over them and make sure that you still think they're valid or not. And I think that's really helpful.

Well, in the last thing as an adoptive parent you want is for a birth mother to feel like she made the wrong decision. Now, I think it's very common for not regretting the decision per se, but regretting that they were in the position to have to make the decision. I don't think anybody feels great about having had to make the decision. But you don't want a birth parent feeling that they wish that if they had to do it again, they wouldn't do it. They would they regret the decision other than they regret the decision itself, not the position that put that they were in it, they felt they had to make that. So all of those are things that when working with a counselor, a expectant mom, or dad at that point, can come to terms with and really make certain that this is the right decision. And hopefully they can they can harken back to that, as they as they move forward and make peace with the decision that they did make. All right, now let's talk about the what is the process for as our audience has probably figured out, Doctor parents can find expectant parents on their own to expect to parents who may be considering adoption, they can find them on their own, or they could work through an agency or attorney who finds expectant parents who are considering and they are matched. What is the process for the latter one, when the agency or attorney, if allowed by state law, are the ones who find the expectant parents, and then make the match between the expectant parents and the adoptive parents, just roughly I mean, it varies by agency, of course. But roughly, what does that process look like?

Well, from the adopting parents point of view, and I have been there twice in my life, what you do is whatever the agency says do you do it means you trust your trust, trusting the agency to have the relationship with the birth mother, you're trusting agency to counsel, the birth mother, and you're trusting the agency to go to the hospital when the baby's born and, and obtain the proper legal documents so that you can adopt and then then the agency turns around and as a adoptive parent, you sign an agreement with the agency, the agency places the baby with you and then you go forward. and adopt the baby.

Okay, and how does that process differ, if they adopted parents find the expected parents on their own

person good bit, let me say that an agency adoption is generally going to cost more than an independent adoption. Because the the adopting parents are now doing things that otherwise the agency would have done for them or for the birth mother. So now you have an adoptive parent who actually is developing a relationship with the birth parent and the adopting parent, it may come to the point where adoptive parents are taking birth mother to the doctor, they are seeing to birth mother's needs, they are hiring a lawyer for the birth mother who's going to do the, the do the getting of all the documents that are necessary. So when they go to court, they'll have a sufficient adoption. And they hire their own lawyer to to file the adoption in court and and Shepherd the case through to a decree of adoption. So it's considerably different.

Yes, it is. And, and, and generally, in that scenario, the adoptive parents are paying for a lot of services, all a cart, they're paying for the services that might be included in the in the entire agency package. And I do worry in those scenarios in that scenario, who is is counseling, the birth mom on her options, and making certain that they present all of our options, including parenting options, so I do worry. In those scenarios, it can certainly be done. But it takes forethought. And it takes a choice by the adoptive parents to make certain that that happens. Can adoptive parents advertise? And I put that in quotes, when you know, seek seek through advertisement expectant parents who are considering placing their child Is that allowed?

It's allowed in a number of states

at the other side of that coin is that it is not allowed in other states?

Well, yes, I think before before you begin to use media to advertise your availability to adoptive first thing to do is check and make sure it's legal.

Exactly. And sometimes we find that parents, adoptive parents will start advertising not realizing that in fact that given their state or where the state where they the birth mom is it or the expectant mom is it may be illegal. So that's something to look into before you start advertising. What do we mean I, we hear the term a legal risk adoption. What does that mean?

It generally means two things, it means either that the adopting parents receive the baby into their arms and into their home, during the period of time where a baby's birth mother has the right to revoke her consent and receive the return of the baby. So they're at risk for having to return a baby, which is very difficult. It's very, very hard. The other form of legal risk is where birth mother places a baby with adopting parents, but the rights of the biological father have not been resolved. And the the adoptive parents attorney or the agency is in the process of of getting the court to the point where the court says that this person's consent is not required. It's just adopting that just birth father's consent is not required. And there's risk involved in that because depending on what the birth law there has done, and depending on what the legal standards are in the state, it may turn out that his consent will be required. And if he doesn't give that consent, when it's required, then the adoption will fall through.

Yeah. All right. And What rights do adoptive parents have? They've matched with the expectant mom or expectant parents. The baby is born. The birth parents have not are they at that point just parents have not signed their their revocation of parental rights, or the relinquishment of parental rights. Do the adoptive parents have any rights at that time?

Well, in the hospital, the birth parents might grant the adoptive parents right to have access To the baby, they might grant custody temporarily pending the consent to adoption being signed. But in general, there aren't any rights in the, in the prospective adoptive parents until the proper legal documents are signed.

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