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

Are you considering adopting a baby? To understand what is involved legally, listen to this podcast with James Fletcher Thompson, a South Carolina attorney with extensive experience in adoption. 

In this episode, we discuss:

1. What are some of the differences in domestic infant adoption? 
   1. Agency and independent (direct placement) adoptions.
   2. Relative adoptions. (grandparents, aunt/uncles, step-parent).
   3. Infants or young children adopted from foster care.
   4. In-state and interstate adoptions.
   5. Adoptions governed by the federal Indian Child Welfare Act.
2. Adoption is governed by state law
   1. Do the adoptive parents have to comply with the laws of the state where the expectant parent resides, where the baby is born, or where they reside?
   2. How do federal laws affect adoption?
   3. How does the Interstate Compact on the Placement of Children affect adoption?
3. What are some of the reasons parents make an adoption plan for their child?
4. Some of the legal issues in adoption from the birth parents' perspective.
   1. Voluntary vs involuntary relinquishment or termination of parental rights
   2. When can an expectant mother voluntarily relinquish her parental rights?
   3. When can an expectant father voluntarily relinquish his parental rights?
   4. Do the expectant parents have to have their own legal representations?
   5. What if the expectant parent is a minor?
   6. How long after they sign the papers do the birth parents have to change their mind?
   7. Do they have to have a reason to change their mind?
   8. What happens if the expectant mom cannot or will not identify the baby's father?
   9. Is counseling important?
5. Some of the legal issues in adoption from the adoptive parents' perspective.
   1. The home study/background check requirement.
   2. Can work with an adoption agency or an adoption attorney.
   3. What is the process if the agency/attorney finds the expectant parent who is considering placing her baby for adoption?
   4. What is the process if the prospective adoptive parent finds the expectant parent?
   5. Can adoptive parents “advertise” to find expectant mothers who are considering placing their baby for adoption?
   6. What is a legal risk adoption?
   7. What rights do the adoptive parents have before the expectant parents relinquish their rights?
   8. What are some factors that affect the cost of adoption?
      1. In-state vs. interstate
      2. Expectant mother support
      3. Expectant father identification and cooperation.
      4. Indian Child Welfare Act
      5. Biological father in active military service
6. Pre-Birth/Pre-Placement Process
   1. May be able to meet in person to get to know one another.
   2. How much information is exchanged about both the expectant parents and adoptive parents? Medical history, finances, etc.
   3. How can adoptive parents know if they are being given all the informatio

Transcript

Please pardon any errors, this is an automated transcript.
Dawn Davenport  0:00  
Welcome everyone to Creating a Family. Talk about foster, adoptive and kinship care. Welcome back to our regulars. You or guys are what make us want to do this. But we also want to send out a special hello. Welcome to our newbies. I'm Dawn Davenport. I am the host of this show, as well as the director of the nonprofit creating a family.org.

Today we're going to be talking about the legal process for domestic infant adoption. If you're thinking about adopting, one of the first questions a lot of people have is, I don't even know where to begin. Obviously, this has something to do with legality. I mean that that much we might know, but where do I even begin? So today we're going to be talking with James Fletcher Thompson. He is a South Carolina Attorney with extensive experience in the legal process for adoption as well as assisted reproductive technology. He is a frequent lecturer throughout the country on adoption and child welfare issues, and he's the author of a book published by the South Carolina bar entitled South Carolina adoption law and practice. He has received national and state recognition for his service on behalf of children and adoptive families, and he also serves on the board of creating a family. So welcome Jim to this podcast, creating a family.

James Fletcher Thompson  1:19  
Glad to be here. Thank you for the invitation. All right, so

Dawn Davenport  1:23  
we're going to begin with I mean, just adoption is a legal process of transferring the permanent parent child relationship from the parents of birth to the adoptive parents, and adoption provides the adoptive parents with all the rights and responsibilities of legal parents. It just as if the child had been born to them, and conversely, the adoptee becomes the legal heir of the adoptive parents. So that's the legal definition of what we are doing. But now we need to dig into that. It's a lot more nuanced than that. So Jim what it's like? The difference between we often hear public versus private adoption. What is the distinction there? Sure.

James Fletcher Thompson  2:06  
So all states have something akin to a Department of Social Services. That is when a child has been abused, neglected or abandoned, and the state steps forward to take custody that child, sometimes is a part of the foster care system, sometimes a part of guardianship, but it's when the coercive power of the state steps forward to seize control of a child, when there is that abuse, neglect or abandonment. Just to give you a sense of things, South Carolina numbers 97% of kids in in foster care have been abused, neglected or abandoned. Only 3% have been voluntarily

Dawn Davenport  2:49  
relinquished. That's pretty typical throughout the US. Yeah, I think

James Fletcher Thompson  2:53  
so and so. Private adoption, though, is the reverse of that. That's when a biological parent decides that they are best parenting can be to relinquish the care to another person, perhaps person that they're related to, such as a grandparent of the child or an aunt or an uncle or a close friend, sometimes thought as a fictive kin, but sometimes just a place to an agency or another person who can assume that parental responsibility. So public adoption is social services. Private adoption can be private meaning through an attorney or through an agency. And

Dawn Davenport  3:35  
today we're going to be talking about private adoptions. We do have a course on public adoptions. Are adopting from foster care, if for those who are interested, all right, so when you are doing a private adoption, it is possible to use either an agency, an adoption agency, or an adoption attorney. What are some of the differences there?

James Fletcher Thompson  4:01  
Well, I think I'm kind of uniquely qualified to have that vantage point, because I am a private attorney doing those placements, but I also work with about five different agencies right now, helping to facilitate the placements that they do. And really it is, the end result is very similar. Process can be somewhat different. I think the differences have sort of blended over the years. I think it used to be that lawyers did these adoptions, really without the social work input to their detriment. I think in the old days, agencies did the same without the legal input to their detriment, and today, I think both have recognized that adoption is a hybrid of Law and Social Science, and so the agencies have lawyers that they fold in to look at situations, give legal advice to the adopted parents and to the Social.

Workers working with the expectant mom. And for instance, at our law firm, we have a social worker on staff, because we recognize that adoption law is just a sliver of it. It's also working with a person at a very vulnerable time. So those two things come together. Agencies sometimes have a mission. Sometimes they are faith based, sometimes they're nationwide, sometimes they're state centric. Attorneys are attorneys, first, adoption attorneys second, meaning they have that code of ethics that their Bar Association requires them to follow. So some adoptive parents like that process, knowing that the attorney is a judiciary and that they need to advocate for the client, in that case, the adoptive parent or the birth mom. Agencies, it's somewhat of a, again, a kind of a hybrid, where they may be a ministry or admission to both birth adoptive parents and the adoptee as well. If

Dawn Davenport  6:06  
you use an agency, an adoption agency, they will have an attorney that is helping you facilitate the legal aspect. One thing I have noticed is that with adoption attorneys, in my experience, it is not common for them to have a social worker on staff, so I think that is unusual. And one of the things we encourage adoptive parents who are using an adoption attorney is to ask about the, as you say, the social service side of it, who is going to be providing counseling to the expectant mom, and oftentimes you are paying an addition for that, I think, in terms of an adoption agency as being a buffet, and that an adoption attorney is often more a la carte, where you have to think in terms of, all right, what are the social services that need to be provided training and education for adoptive parents. You know, is another one that agencies, some provide and some don't. In the domestic adoption sphere, few attorneys do without adoptive parents first asking, would you agree with all of what I just said?

James Fletcher Thompson  7:15  
I'd actually do agree with that. And I also think that the adoptive parents can help. Kind of call the question. I really admire an adoptive family who, if they're meeting with me or even with an agency, ask that question, what services are you providing to the birth parents? How do they feel supported? Yeah, you know, we're all a part of this, and we want it to be something that we can look back on and speak to our child, the adoptee, years later, and to say that it was a process that was governed by mutual respect of all the participants I love that you know, now that I'm the adoptive parent of grown ups, I have a unique perspective now, looking back and knowing that each step that I have done, I want to be able to look them in the eyes and just say that it was an honorable thing to their birth parents who gave them life and but for them, I wouldn't be a parent.

Dawn Davenport  8:16  
It's so well said. It's tempting to think at the beginning that I just want it done. I don't want to do anything that could jeopardize this potential match or this match, and yet, for the strength of the relationship going forward, which is a lifetime relationship, often, it's not always, but in an ideal world, your child is going to have access to the person that birthed them are to the people that are their biological family. So thinking about it up front makes sense. You know, another distinction is when adoptive families seek out and find an expectant mom on their own. Or it can also be the reverse, where a pregnant mom or couple realizing that they're not going to be in the best position to parent, seek out and adopt a family on their own. It could be called number of things identified, adoption, independent adoption, I think it could be called any number of things. Talk to us some about that process. Absolutely.

James Fletcher Thompson  9:17  
I've been doing adoptions for 35 years, and I joined my dad in law practice, and he did adoptions before then, in those days, an expectant mom needed that go between that intermediary to identify prospective adoptive parents. Prospective adoptive parents needed that intermediary to be able to find that birth mom, we just didn't have Facebook. We didn't have social media where people could reach out and network on their own. In many respects, adoption is better and worse for that. You know, we can debate that, but it is empowering for a birth mom to be able to reach out to her family and friends and. Be able to say, I'm facing an unplanned pregnancy, I need help, and then someone she loves or trust to vouch for someone else, and that vouching for that's the identified adoption, where she identifies an adoptive family, or the adoptive family puts out on their sort of concentric circle of friends and family. It might be a small, close net group that they reach out to. It might be that whole, if you will, holiday greeting card group. It may be their professional network and say, you know, my wife and I are home study approved. We're ready to adopt for some of you all, but no, we've gone through four in vitros, etc, or something along that. And we're working with an agency or working with an attorney. We're home study ready, and if you know of someone facing that unplanned pregnancy, mention our name and that sort of organic system of identification really works. Now it's not for everybody. Some folks really don't love having, if you will, their business in the street and kind of putting their most personal issues out there. But those who do can recognize that that's something that works well, and it can be reassuring to the birth mom who feels like she has a connection and is empowered and making that selection, and it's not seeded or delegated to some star chamber that she perceives, perhaps as a as an agency might be perceived.

Dawn Davenport  11:32  
That makes sense. So another distinction is situations where a relative could be a grandparent, an aunt, an uncle, a cousin, adopts a child. In this case, we're talking more about infants, but within their family, is there any distinction from a legal perspective, when that happens?

James Fletcher Thompson  11:54  
There is. It can be more straightforward. In most states, it's a little bit more streamlined to adopt within a family structure. I actually think we will look back on that decades from now and wonder why we have made it as streamlined as we have. When I think for safety of children, there probably needs to be a more enhanced process to evaluate prospective adoptive families, not a lesser one, but in any event, today, you don't need to have the pre placement home investigation. In the same way if you're a relative, you don't have to have the post placement supervision, the process even coming out of foster care, which I know is not our topic, but many states are making that even more streamlined, where the home study process is more abbreviated, and I guess the idea is that if the birth mom identifies somebody within her own family, she's vouching for them, and family should be that first source of potential placement. There's certainly federal law that says that we should first look to family, and then, if there can be a timely placement, that could be the first choice. But then as we move on, step parent adoption, a grandparent adoption, a relative, there's a lot of the cases that we are handling, and that can be a good result for a

Dawn Davenport  13:20  
child, okay, you mentioned step parent adoption. How does that in this situation, you've got, certainly a known person, it's the person married to the child's mother. Any distinctions there? I mean, there is a biological father, known or unknown. So is there any distinctions there?

James Fletcher Thompson  13:40  
Well, of course, you know. And there can also be our step parent adoptions, where there's a biological mother.

Dawn Davenport  13:45  
Oh, valid point. Thank you for pointing that out. Yes, and

James Fletcher Thompson  13:48  
that's, you know, the vast majority are the step dad and adopting. But every family's got their own issues, and every family's, you know, complexion is different. And so those things can happen in terms of difference. The process, again, is more abbreviated, but not the process of termination of parental rights. The process for termination of parental rights is the same, whether it be for an agency adoption or a public adoption or an older child or an infant, there still has to be a process where either that biological parent relinquishes parental rights by signing a consent, voluntarily giving up those rights, or the court judicially terminates those parental rights. And judicial TPR termination of parental rights is a process. Every state is different. Many states are similar, but many states are strikingly different. In the grounds for termination and the process for adoption, it usually governs of where the adoption is, where the birth mother gave birth and and made that placement, not as much where the family is living. The. Prospective adoptive parents, but where the placement is made is often where the adoption takes place, and therefore it's often where the laws that govern that okay,

Dawn Davenport  15:09  
yeah, we're going to come to that, because that's a really good question. Before we leave this kind of general differences section here, I want to bring up the Indian Child Welfare Act that is outside the scope of what we're talking about today. However, it is so important that I want to mention that if there is the possibility that the child or the expectant parents are connected with the tribe or are Native American, you must let your agency or attorney know this at the very beginning, because a whole different set of rules and requirements are coming into play, and so I want to make certain that everyone knows that you

James Fletcher Thompson  15:47  
say ICWA, Indian Child Welfare Act. And I'm afraid I have a little bit of PTSD on that one Dawn, because I was the attorney who represented the prospective adoptive parents and the baby Veronica case, which is a case of on that same issue that went to United States Supreme Court and back down again. And so if you will, let's underscore that. Let's highlight it, and let's put it in blinking lights that if there's any native american issue, it's something that you bring to the attention of the attorney or to the agency, because that process is night and day, different Indian tribes, understandably and appropriately have the care of the Native American child and the importance, based on the truly long and lamentable history of removing Native American children from those families, right? And so it's important to be careful of that. So I'll just underscore just what you said.

Dawn Davenport  16:42  
We have encircled that with blinking lights. Yeah, as well, we should.

James Fletcher Thompson  16:47  
I think when you when you talked about, I know we're going to get to legal risk later, but it really Native American, the Indian Child Welfare Act, the interstate compact, and birth father rights are the three sort of issues that are the legal risk, issues that any family should be cognizant of.

Dawn Davenport  17:06  
All right, perfect. All right, so you alluded to this just a moment ago, and that just for the onset, adoption is governed by state law, which means that it differs, as you pointed out, sometimes greatly between states. So what law does the adoptive parents have to comply with? Is it the state where the expectant parent resides, or the state where the baby is born or the state where the adoptive parents or prospective adoptive parents live?

James Fletcher Thompson  17:38  
So it's all of that. The question is, which states laws govern. Is it descending state? Is it the receiving state where the expectant mom lived? Is it where the adoptive parents live? It really can be all of that, because the ICPC, the interstate compact and the placement of children is a compact among the 50 states, it is where the agency from the sending state must approve, but also the receiving state. So the state laws from both are, if you will. There's an overlay to the adoption from both states to make sure that the child's best interests are being served when it comes to the law that is being applied, it is typically where the adoption is being finalized. Some states, like South Carolina, for instance, do not allow an adoption to be finalized in the receiving state of the adoptive parents. It has to be done in South Carolina. So everything is done under South Carolina law. Other states allow a child to be placed with the adoptive parents. They return to their home state and the adoption finalized there, if the adoption is finalized in the receiving state, typically, for instance, the birth father's rights and responsibilities are governed under the receiving states laws, but always the law that applies to the birth mom, whether there is a waiting period, whether there's a revocation period, whether she can have counseling, or is required to have counseling, whether she can have legal advice, or is required to have legal advice, whether she's allowed to have reasonable living expenses paid, or there's prohibition on that. All of those things are from the sending state, the state where the baby is born, the state

Dawn Davenport  19:33  
where she resides. That's correct. I don't know how often this happens, but that the state where she resides, the mom resides is not the same state that the baby is born in. Is that common? I mean, it's it seems like it would not be. But is that common at all? Well,

James Fletcher Thompson  19:50  
it's common in in my practice, because we have Charlotte, North Carolina, near the South Carolina border, and lots of people go there to deliver, or Augusta and George. Then people go to deliver the ICPC, the interstate compact placement of children as an understanding that ICPC is not applicable if the only reason that the baby was born there was for the birth mom receiving medical care within a certain radius of that home state. So if it's just for practical reasons or for medical reasons. It does not implicate that other state, right?

Dawn Davenport  20:24  
If, for some reason, she has moved to the state stateless, for instance, where the prospective adoptive parents live, and she has moved there for the duration of her pregnancy, or the remaining part of her pregnancy, what would happen then she's from, let's say Texas, but she moves to, let's say California for her pregnancy.

James Fletcher Thompson  20:47  
That's okay. We have the right to travel in the United States. It's a constitutionally protected right. There have been three cases that have looked at that issue as to whether or not a person that travels during the pregnancy implicates, for instance, the interstate compact. It does not but

Dawn Davenport  21:04  
so the law in this case, the example I gave, she was living in Texas. She moved to California during the pregnancy with the intent to move back to Texas. What law would govern? Would it be Texas or California? California, all the way California, all the way as long as she is residing in California, Okay, interesting when she delivers? All right, that's

James Fletcher Thompson  21:23  
right. And if the baby's placed in California, no ICPC and California law. All right.

Dawn Davenport  21:31  
Let me take a moment to remind everyone that we have a weekend wisdom podcast that is a short form podcast, meaning five to 10 minutes where we answer your questions. So we need you to send us your questions. You can click on the show notes and send them that way, or you can send them at info, at creating a family.org All questions are welcome, and we really appreciate them. So listen to weekend wisdom, but also send us your questions. And now back to the show, Jim in your practice, and what you see throughout the US, what are some of the reasons parents make an adoption plan for their child?

James Fletcher Thompson  22:13  
It is so unique, and it's one of the real meaningful parts of my practice, getting to know an expectant mother in making that decision, there was an adoption we we did yesterday in our law firm, and the birth mom was still struggling with her own addiction issues, and she realized the best parenting that she could do was to choose a family that was intact and ready, willing and able, Home Study, ready to take care of that now, because of that addiction issue, the Department of Social Services would have likely gotten involved if she didn't step forward towards a private plan, but that private plan, that private adoption, still gave her some agency in her own life, agency, meaning not in terms of adoption agency, but in terms of

Dawn Davenport  23:01  
her own decision making, being able to choose the parents.

James Fletcher Thompson  23:05  
The flip side of that, and I've seen some data fairly recently from creating a family, about the percentage of kids that are in foster care where there's drug issues is very high, but there's an overlay into private adoption, where there's that issue of drug and alcohol that's not everybody. Sometimes it is a highly educated person of means, but still realizes that they're not ready. Maybe they're themselves. They're not ready. Maybe it's an unhealthy parenting partner that they would be forced to raise this child with that they think is not safe for them or for the child. There's a variety of reasons. There are married couples that choose the plan of adoption. I have one in my mind right now that worked with our law firm. She was successfully parenting six children, but she came to the end of recognizing that this unplanned pregnancy would really jeopardize the house of cards that they've really tried to build in that family, and they made a loving and unselfish decision to place their child for adoption. So it is across the board based on race, and across the board based on age and economics education. You can't pick out a stereotypical birth

Dawn Davenport  24:21  
mom is poverty often a factor.

James Fletcher Thompson  24:26  
It's probably a factor, but I don't find it to be a compelling reason. If anything, when times are really difficult, I find but expectant parents having a hard time holding on to anything they hold on to the child that they deliver. So I'm going to say no, it may be a factor as they consider, sort of the totality of circumstances. I think it clearly is a part of the totality of the analysis. You know, somebody's not working or if they're not making ends meet, if they can't meet their. Daily needs, and then it's it's more of a necessity. Yes, that that can be a factor, but not just because it might mean a little bit less or that they are having a little bit more difficult time. I don't see finances as factored that

Dawn Davenport  25:15  
highly, and so many expectant moms now are already parenting children. So it's the impact of adding another child on the children they're already parenting that is often, I think, persuasive.

James Fletcher Thompson  25:29  
So true most of the private adoptions, the birth mom is already parenting, usually successfully parenting,

Dawn Davenport  25:36  
right, exactly. So now I want to talk about some of the legal issues from the birth parent perspective, the first one we've already touched on it, and so we don't have to go into great detail, but that is the whether they are relinquishing parental rights, or the parental rights are being terminated, or another way to say that is whether it's voluntary or involuntary. I imagine that comes in in foster care, but perhaps in other ways as well. So talk to us a bit about that distinction,

James Fletcher Thompson  26:06  
sure. So a birth mom can decide to voluntary sign of consent, sometimes referred to as a relinquishment or a surrender, and that gives up her parental rights, either to an agency or to the state or to an individual. You can also do a TPR, a termination of parental rights. That's where the court judicially terminates the rights based on certain factors that usually they have to be proven by clear and convincing evidence, such as a failure to visit or a failure to support or some sort of history of abuse or neglect. So those are judicial terminations, and in any given case, you might have one consent and one TPR. They could have two TPRS or two consents. Each case is unique.

Dawn Davenport  26:50  
Okay, so when can an expectant mom voluntarily relinquish her parental rights

James Fletcher Thompson  26:57  
anytime after the birth of the child? All right,

Dawn Davenport  27:01  
so it has to have the birth, okay, yes, when can an expectant father? Is there any difference? Or does it also have to be after birth? There

James Fletcher Thompson  27:10  
are big differences about the way birth fathers are are judged versus birth moms. In some states, they actually can relinquish the child prior to the birth. South Carolina, it needs to be post birth. But again, they can sign a consent or they can sign a voluntary waiver of their parental rights.

Dawn Davenport  27:31  
So it's state law. You're going to have to look at the state Some states allow fathers to I don't think there's any state that allows a mom to relinquish her parental rights before birth. It's always after birth, but with a dad again, it goes back to the differences in the States. Yes, do Expectant Parents have the right to their own lawyer? I mean, if an attorney is representing the adoptive parents, does there have to be a separate attorney who represents the expectant parents, or subsequently, birth parents,

James Fletcher Thompson  28:01  
sure in a judicial TPR termination of parental rights, where they're terminating rights against their will and involuntary adoption, yes across the board, birth parents are often given an attorney, usually from the indigent defense, at no expense To them, and a adoption of voluntary release different states to handle it differently. For instance, South Carolina requires the attorney representing the adoptive parents not to be a part of that process where the birth mother relinquishes rights. Has somebody either a lawyer or a certified adoption investigator, meaning somebody with extra training and adoption to be there to advocate for that parent. But for instance, over the state line in North Carolina, it can be done by the attorney for the adopting parents. Each state's different.

Dawn Davenport  28:51  
Okay, again, so each state is different. What happens if the this is not the usual? My question is, what happens if the expected parent is a minor. Most, at least, moms who are relinquishing in domestic infant adoption are not minors. That is a misconception, I think, but there are certainly people below the age of 18 who are making an adoption plan. So anything different? If the mom is underage, she still has

James Fletcher Thompson  29:20  
the right, whether she be underage, if she's a minor, to still choose an adoption plan, even if that is different than what her parents or guardians would have her do. In South Carolina, there are no additional protections other than just good practice and common sense. What is voluntary not subject to duress or coercion. For a sophisticated 30 year old might be a different process for 15 year old person who might be less sophisticated, so you have to bring in some common sense to the process and and hopefully make sure you have adoption professionals who are sensitive to her unique needs. Needs to be a part of it

Dawn Davenport  30:01  
to make sure that she's actually voluntarily doing it. So how long after birth parents sign the papers for voluntary relinquishment? How long do they have to change their mind?

James Fletcher Thompson  30:14  
So the question you ask is really twofold, does your state have a waiting period, and does your state have a revocation period? So waiting period often is how long after the birth, before a birth mother can be presented with the relinquishment documents. For instance, in South Carolina, we have no waiting period. Some states, it's 36 hours after birth. In South Carolina, we impose upon ourselves a 24 hour rule of thumb, even though the statute doesn't discuss that. Then the next question is revocation. How long can she to change her mind? In Georgia, for instance, our sister state, she has four days to change her mind. North Carolina, five days where you can simply say, I made a mistake and I want the child returned to me, this is usually after the baby's already home with the adoptive family. South Carolina has no reputation period, and yet our process is a little bit more rigid about how the consent is done. So all of those things kind of come out in the

Dawn Davenport  31:15  
wash. Do you know of the range of revocation period, which is, of course, what many adoptive parents are worried about? Yeah, do you have a feel for the range of the different states? The largest revocation period?

James Fletcher Thompson  31:27  
You know, I haven't looked recently. Last I looked from Maryland was 30 days. It certainly was 30 days a while back. Whether that's been addressed again, I'm not sure. We've had plenty of situations where you asked earlier, what if a South Carolina birth mom delivers in Georgia or delivers in North Carolina? We've given them the opportunity to say, Do you want to choose Georgia law and have a revocation period, or North Carolina law have a revocation period? Or would you rather choose South Carolina law have no such revocation period

Dawn Davenport  31:58  
during that revocation time? Do they do they have to have a, quote, good reason for changing their mind, or can they just change their mind? Just

James Fletcher Thompson  32:06  
change their mind. That's a good reason enough. Okay, yeah, but I've never had one, but one time choose that revocation period, the the finality and permanency of knowing that you've made a voluntary decision that's in the child's best interest and that the family can rely on that, and you can rely on that decision. The harder question comes with, how long does that birth father have post placement to come forward and to raise his hand to

Dawn Davenport  32:32  
be able to object? Alright, let's talk about that. So

James Fletcher Thompson  32:35  
South Carolina, that time he's his judgment is at the time of placement, as he lived with that person mother for six months consecutively, as he contributed a fair and reasonable sum of money. That's how we judge whether his consent to the adoption is required. But if you want to go to Pennsylvania, that man has 120 days to come forward. So really different from state to state. And in South Carolina, for instance, a birth mother has the privacy right not to identify that birth father, whether she knows him or not, you can choose not to name him. In North Carolina, not so much. There's a strong preference towards naming a biological father. So again, state by state, the process for the birth mother, but also the grounds that we look at the birth father's rights can be different from state to state, and a lot of that boils down to whether that state is one of the 34 states that has a responsible father Registry, or thought of as a putative father registry, the database that allows John Doe men to come forward and sort of raise their hand and say, I could be a father, and they register under the name of the birth mom. And so when the agency or the attorney is doing the adoption, they check the birth mother's name on this confidential database, and if a man signed up, he's be a possible father for that child born to that birth mother, then he's given notice. And so to me, one of the most important legal risk issues is birth father issues, and finding a state that has a putative father registry is a key to addressing that legal risk.

Dawn Davenport  34:15  
Okay, all right, and just briefly talk about the importance, again, from we're speaking about birth parent rights right now, the importance of counseling, regardless of whether you use a adoption agency or an adoption attorney, right

James Fletcher Thompson  34:32  
so options counsel the decision to be able to make a meaningful decision for That expectant mom. I think it's in everybody's best interest, and most importantly, the child, to know that their birth parent was given that opportunity to weigh those choices and to have an adoption minded person. You can be a wonderful counselor, but if you're not a counselor that understands unique issues of adoption. You're probably not serving that person well. You can be a great lawyer, but if you're not understanding of adoption related issues, you're probably not serving that client well. And that's one reason why people go to adoption agencies, because it's unique area of law and social work that comes together, that serves the needs of the triad, the adoption triad, the birth parents, the adoptive parents and the adopted

Dawn Davenport  35:27  
let me pause here to thank Vista Del Mar adoption agency. They have been a long time supporter of creating a family the nonprofit as well as this show. Vista Del Mar is a licensed nonprofit adoption agency with over 65 years of experience helping to create families. They offer a home study only service as well as a full service infant adoption program. They can also do international adoption home studies as well as post adoption support, and they have a foster to adopt program. They're located in California, and you could get more information about them online at Vista Del mar.org/adoption and now back to the show. All right. Now, let's move to talking about some of the legal issues and adoption from the adoptive parents perspective. One thing we haven't talked much about, and that is it is required that adopt, I think at all 50 states that adoptive parents have a home study and background check requirements. Who does that process?

James Fletcher Thompson  36:31  
Yes, you have to add that pre placement home investigation and post placement report, usually done by the agency. Or there are, can be private, certified home study providers in the states that can do that. It's not just any social worker that can do an adoption home study. It's unique. And so families often say, Well, I've got a friend who's a social worker or who works for department social services, I'll have them do my home study. An adoption home study is very different from a foster care license, or from any other thing that's called home study. This is an adoption pre placement home investigation with unique criteria that's statutorily driven,

Dawn Davenport  37:11  
all right, another legal issue that can come up, and this goes back to what we were discussing about, where the adoptive parents identify or find a expectant parent on their own. Can adoptive parents advertise to find expected parents who are considering placing their baby?

James Fletcher Thompson  37:31  
It's a state by state requirement. South Carolina allows it, so long as they have a home study, and different states have that rule, but it can be a criminal violation to advertise in some states, and criminal violation if you are not home study approved. So you have to be mindful of that for sure.

Dawn Davenport  37:50  
How does that work on social media? Is that considered advertising if you are posting on social media? Look, we are looking to adopt if you know of someone, or if you yourself are considering, please let me know. Is that a risk for adoptive parents?

James Fletcher Thompson  38:07  
I think if they have a home study and they are approved, I think that that's a safe bet. Those laws went primarily went into effect where there were yellow pages. If we, any of us, remember those days when non licensed agencies facilitators were advertising adoption services and they were not licensed or accredited or in any way accountable, and those were those groups primarily. But as long as a family has that licensed home study and they're doing that on their own social media. I think that's appropriate.

Dawn Davenport  38:43  
All right, you have alluded to this earlier. Can you restate the, what we call a legal risk adoption? Can you restate the, think you said there were three issues that could come up that make an adoption risky going forward?

James Fletcher Thompson  39:00  
Yeah, yeah. The three things that I think are the most significant legal risk issues are one, the federal law, the Indian Child Welfare Act, ICWA, if the child is a Native American, child is a member of a federally recognized tribe, the rules are just different there. And so that's an important hallmark of legal risk is ICWA. The second is making sure that the requirements of the interstate compact on the placement of children the ICPC are adhered to, which is this compact among the 50 states that says that both states have to agree before a child can move from state A to state B as a preliminary to a possible adoption. And honestly, that happens a lot.

Dawn Davenport  39:47  
What are some of the issues under the ICPC interstate compact for the placement of children? What are some of the issues that would come up that parents need to be aware of, that they wouldn't automatically think of? That they need to make certain that they are adhering to

James Fletcher Thompson  40:03  
well, it's largely procedural. It requires the sending state to look at the medical and social history, look at the home study, look at all of the documents that freed this child for adoption, to make sure that they're done under state law, and then they're also reviewed by the receiving state to make sure, for instance, if this child has special needs, that that adoptive parents have a home study that approves them for the placement of a child similar to that child. So that sometimes takes time, and it might be a week, sometimes more before the adoptive parents are free to return to the home state.

Dawn Davenport  40:45  
So it's a legal risk, technically, but as long as you're following the process which is well laid out, yes, right, all right, honestly,

James Fletcher Thompson  40:54  
the biggest legal risk of ICPC cases is working with an attorney who dabbles in adoption and did not recognize the ICT C's applicability,

Dawn Davenport  41:05  
okay, that makes good sense, all right. And what is the third legal risk that you were referring to,

James Fletcher Thompson  41:12  
birth father issues, okay, recognizing that birth fathers have a legally recognized, constitutionally protected right so long as they have done certain things, and those things usually are defined by state law. But if that man has seized the opportunity that the biological connection afforded him, his consent to the adoption is required, just like a birth mom's. But if he hasn't, the adoption can go forward without his consent. That is very state specific. So in South Carolina, he has to have done certain things. He has to have stepped up, if you will, have been an earnest father as he lived with her. Has he offered to? Has he contributed financially? And then the next question is, did he, if you will, raise his hand as the father? Did he register with the putative father registry, which 34 states have that allows there to be this database where a man who is not named, meaning a John Doe, he's not on the birth certificate, he wasn't named by the birth mother and the consent document, but he can name himself by virtue of registering with this database under the name of the birth mom, and then we check the birth mom's name, and again, it's a confidential database. Not everyone can just go on here and and to search these records, but an adoption agency can, an attorney can to see if a man has claimed paternity. If he's claimed paternity, he's given notice and an opportunity to be heard as to whether he's done those things necessary if he hasn't signed up, that's usually in most states, an implied, irrevocable waiver of his right to receive that notice. All right, so there's no more publication in newspapers and things of that nature. So the legal risk issue is, have we dealt with the birth father in an appropriate way, given him an opportunity to be heard, and if he has done those things, given him the right to be a participant in the adoption, and if he hasn't, it gives us a way to move towards permanency for that child more promptly.

Dawn Davenport  43:23  
So what rights do adoptive parents have after a match? They have been matched with an expected parent. Parents are mom. They've met with this person, they have had a baby shower. They have started dreaming about this child, but the expected parent, child has not been born and the expected parents have not relinquished their rights. What rights do the adoptive parents have none, and that's a hard pill.

James Fletcher Thompson  43:50  
That's really why I don't like the term failed adoption, because a failed adoption looks at the adoption from the adoptive parents point of view, and not the child's point of view. It may very well have been the appropriate decision that that expected mom came to, even though she thought about adoption for a while and maybe even committed to it. But she has complete agency. She has the right of making her own decision all the way through to the time that she signs and through the time of their revocation period. And so the adoptive parents cannot assume that that child is theirs, or assume many rights until the law bestows those on them. All

Dawn Davenport  44:33  
right. So what is allowed pre birth? Prior to birth, can adoptive parents and expected parents meet in person. Is it required how much medical history is shared between them? Is there anything in that process that after there has been a match, or after a expected parent has been identified? Is there anything legal that we need to know and that we need to be careful of during that period, there.

James Fletcher Thompson  44:59  
Are many times when prospective adoptive parents meet with the birth parents, have a rapport that's built, have an understanding, perhaps even discussing what things look like post adoption. But that does not transform the case to any kind of rights for the adoptive parent. It continues to be completely in the birth moms, really the birth parents decision up until the child is placed and the consent is signed.

Dawn Davenport  45:30  
All right now post birth, let's talk about open adoption. Sometimes it is just a verbal agreement between the adoptive parent or parents and the expect or at this point, the birth parent or parents, it's what they've talked about, what they verbally agree but sometime they have a written document. Is that written document enforceable?

James Fletcher Thompson  45:56  
So these written documents often refer to packas, post adoption contact agreements. There's a growing trend in states to recognize a packa. A packa is, I think, last I looked, in about 30 states that would allow enforceable agreements, post adoption contact agreements. South Carolina, for instance, is one of the states that does not have that, but it's been introduced in our legislature this year for those states that don't have a Paca, where you can actually enforce post adoption contact. It's really kind of a good faith understanding or an agreement. They're often done where the birth parent says, May I have some pictures, may I have some updates, perhaps a meeting once a year, when people who are first coming into adoption, they may think that that open adoption is driven by birth parents, not so much the more that adoptive parents learn about the impact of some connection, some bridge to the birth family, and how Important that can be to a child. I'm seeing more and more adoptive parents be the one that reach out and say, Can we have a relationship? Can we have a mutual respect and understanding over the years? Because at age six or eight or 12, we may be reaching out to you to gather information for that child.

Dawn Davenport  47:19  
Interesting. Yeah, things have changed. The child is often placed with the adoptive parents right at birth or right after birth, released from the hospital to the parents. But when is the adoption usually finalized?

James Fletcher Thompson  47:33  
Six months or less for an infant adoption, I would say. And again, that's state by state. Some states have certain waiting periods before an adoption can be finalized, but six months or less is a good rule of thumb.

Dawn Davenport  47:45  
During that period of time, who makes medical decisions for the newborn, or for this case, you know, a five month old or four month old, right? So

James Fletcher Thompson  47:55  
during the pendency of the case, waiting for the adoption to finalize, the adoptive parents still have custody and then post adoption. They are the adopted parents, so they're still making all the medical decisions for the child. They can place the child on their medical insurance. For instance, federal law treats a child to adoption the same as a child by birth. Those protocols, if you will, are pretty straightforward.

Dawn Davenport  48:22  
Does the birth parent have to show up in court for the finalization, or does anybody have to? Is it handled in court? And if so, do the birth parents have to show up? It's

James Fletcher Thompson  48:34  
funny, these the court hearings. Birth parents typically do not show up their waiver that they signed the consent document, ways notice of a final hearing, if their rights have been terminated, that they're not given notice of a final adoption hearing. Once in a while, things are so cordial that the birth parents come to a final hearing, but not usual, and then state by state, really different. One of my colleagues is an attorney in California, sometimes it's done virtually or even over the telephone. South Carolina, it's very formal, where you come to court and dress for court, get sworn in, take the stand, and are asked very difficult questions, like, Do you love this child? And they do understand adoption is forever, but it's a beautiful moment to be able to kind of a public expression of your love for the child. And oftentimes

Dawn Davenport  49:26  
the whole family comes and yes, you get the picture of the baby, you holding the baby, and the judge gets to smile in your picture, and it's a part of your family photo album. Yeah, absolutely,

James Fletcher Thompson  49:38  
it's sometimes it's the only time that judges smile.

Dawn Davenport  49:43  
So an interesting thing that some people don't realize is that the original birth certificate has the biological parents, if the birth father has been identified, has both parents listed, but then it is amended at some point and the adoptive parents are. Listed on the birth certificate. So two questions, when does the birth certificate get changed so that the adoptive parents are listed, and how can adoptive parents get a copy of the original birth certificate for their child? Adults or teens often would like a copy of that one?

James Fletcher Thompson  50:17  
Yeah, absolutely. So the amended birth certificate, if you will, the adoption birth certificate is after the adoption is finalized. But there's no mention of adoption on that document. It simply has the mom and dad listed there as the adoptive parents, without mention that had never been amended. The original birth certificate is a valuable thing, and then an open adoption, where everybody knows everybody, and there's a free flow of information. There are times where that birth parent will supply that to the adoptive parents as a keepsake, something that is kind of put aside for later, to be able to have that sense of the beginning stage of life, there's a connection to that for a family, but not so in many states. I, for instance, could not give an original birth certificate to a client, because it's protected under the confidentiality statutes. So unless the birth parents and the adoptive parents have that understanding and do that themselves, I can't facilitate that. And last I looked, only three states have a complete open records to allow an adoptee after age 18 to go back and have that original birth certificate.

Dawn Davenport  51:34  
So I guess the bottom line here is that if you want to be able to give that to your child, the time to do that is after, obviously, after birth, but by working directly with the child's birth parents. Yes, all right, and as boring as it might be, we do have to have a social security number. All of us do. Can adoptive parents get that for their child, and do they have to wait till after the adoption is finalized, or can they do it when they have custody of the child, but they're waiting for that Oh, four to six month period before they go to court or appear and have the adoption finalized?

James Fletcher Thompson  52:12  
Don perhaps I'm not the best person to ask, because I happen to know that my wife went to Social Security three different times before they finally gave us the social security number, because they wanted all sorts of proof. So I've learned from that experience, and now for my clients, I explain that you wait for the adoption to be finalized, you wait for you have your your birth certificate, and you go to social security with all sorts of proof of where you live and how long you've lived there. That's when you would get that done, that's when the social security card would be issued. But prior to that, you know, our babies are not born based on the IRS timeline, and so sometimes we have taxes to take care of, and so there's an adoption identification number, there's a way of being able to claim a child for your taxes before you have that social security number, you can actually use that over a couple of

Dawn Davenport  53:06  
years. All right. Well, thank you so much. Jim Thompson for talking with us today about the legal process of domestic infant adoption. We truly appreciate your your expertise. My pleasure. And before you leave, I want to thank the jockey being Family Foundation for their support of both this show and the nonprofit creating a family and it's through them that we are able to offer you free courses. We have 15 courses on our jockey being family page on our website. They're focused on parenting, and they're terrific. If you need a certificate of completion, you can get one. If you don't need one that you should still look through the courses, you could do that by going to Bitly slash JBf. Support, that's B, i, t, dot, l, y, slash j, b, f. Support, you.