How does one adopt a child?

Adoption laws vary from state to state. For a minor child who is not related to the adoptive parent or parents, there are generally two types of adoptions: agency adoptions and private or independent adoptions.

What is an agency adoption?

As the name implies, the parents work though a state-licensed agency. The agency often supervises the care of biological mothers who are willing to have their children adopted by others, and it assists in the placement of children after birth. Agencies screen adoptive parents--often extensively--before the adoption proceeds. Some agencies have long waiting lists of parents. Some agencies specialize in placing children born in foreign countries.

What is a private adoption?

Private adoptions bypass the use of agencies and may bypass the long waiting lists as well. The process may begin when people who seek to adopt a child contact a lawyer who specializes in adoptions. The lawyer may work with physicians who are aware of women willing to give up children for adoption. Sometimes would-be parents will place ads in newspapers seeking women who are willing to place their babies for adoption.

In most states, adoptive parents are allowed to pay a biological mother's medical expenses and certain other costs during the pregnancy. But adoptive parents are not allowed to pay the biological mother specifically to give up the child. The law treats this as a black-market adoption, the buying and selling of children, and it is a crime in every state.

Is court approval necessary for an adoption?

Yes. Court approval is needed for both agency and private adoptions. Many states also require that the adoptive parents be studied and approved by a social service agency.

Can a biological mother revoke her consent to adoption?

Yes, but there are limits on her right to revoke consent. In most states, a biological mother who initially consents to a child's adoption before birth may revoke that consent after birth. In other words, the mother's consent is usually not final or binding until a certain period of time after birth. In most states, that time period is relatively short, such as two to eight days. If a biological mother consented to adoption during the proper period of time after birth, it is much harder for her to revoke her consent. Generally, following an after-birth consent, a biological mother may revoke her consent only if she can show that there was fraud or duress. Fraud could be found if the adoption agency or lawyer lied to the biological mother about the consequences of what she was doing. Duress might exist if a person at the adoption agency threatened the biological mother with humiliation if she did not sign. A biological mother's change of heart is not normally enough by itself to revoke an after-birth adoption consent. Although a mother may feel emotionally drained and under stress after the birth of a child that she plans to give up for adoption, that type of stress is not enough to revoke an adoption unless the relevant person or agency used harsh tactics to obtain the mother's consent.

Is the biological father's consent necessary?

Generally, yes--at least if the biological father is known and the father does not abandon his parental rights. The biological father should be notified of the birth and pending adoption so that he may consent or object. If the father is not known, the adoption may proceed without his consent (although adoptive parents can feel safer about the validity of their adoption if the biological father has been notified and agreed to it). If a biological father is not notified, he may later contest the adoption if he acts within a certain period of time after the child's birth or adoption (such as one to six months).

If biological parents give up a child to adoption, what rights and obligations do they retain?

In general, they lose all rights and have no obligations. They have no right of contact with the child, cannot obtain information about the child, and so on. And they have no obligation to support the child.

However, there is a growing movement toward "open adoptions," in which parents may, by agreement, retain some rights to contact with the child and information about the child. See the "Open Adoption" sidebar below.

What is a stepparent adoption?

A stepparent adoption is one in which a child's biological parent marries someone who wishes to adopt the biological parent's child and is able to do so because the other biological parent consents or because consent is unnecessary. If a biological parent does not consent to the adoption of a child, the child cannot be adopted by another person unless a court first finds that the biological parent is unfit. If a parent is found unfit, that person's parental rights are terminated, and the child can be adopted.

What is the definition of an unfit parent?

Parental unfitness is determined by state law. Generally, an unfit parent is one who has failed to have regular contact with a child or to contribute to his or her support. A parent is also unfit if he or she has been abusive or has otherwise failed to provide adequate care for the child.

What happens if a stepparent adopts his spouse's child and the parents later divorce?

A divorce does not affect the legality of the adoption. The stepparent continues to have all the rights and responsibilities of a biological parent, including a right to seek custody or visitation and a duty to support the child.

Can a single person adopt a child?

Yes. Many states allow single persons to adopt, although some agencies strongly prefer to place a child with a married couple. Other agencies--particularly those dealing with children who might be hard to place--are willing to place a child with a single person. Single-parent adoptions are usually possible in private adoptions.

Can lesbian or gay couples adopt a child?

Yes, in some states, including New York and California, gay and lesbian couples are able to adopt a child.

Who has access to adoption records?

In most states, court adoption records are sealed and can only be opened by court order (although a few states--Oregon, Kansas, Tennessee, and Wyoming--allow all adopted children access to their adoption records). Procedures and standards for opening records vary by state. Increasingly, states require that certain nonidentifying information, such as the medical history of the biological family, be made available to the adoptive parents at the time of adoption. Some states also have registries in which parties to the adoption can agree to a later exchange of information, including names and addresses.

What is the legal status of an adopted child?

An adopted child has exactly the same rights as a child reared by his or her biological parents. Similarly, adoptive parents have the same obligations to the child as they would to one born to them.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association

What are the rights of parents?

Parents have a right to direct the care, control, and upbringing of their children for as long as they are minors. This gives them the power to make various decisions on behalf of the child, including where to live, what school to attend, what religion to follow, and what medical treatment to obtain. Normally, the state will not interfere in these decisions. Only in life-threatening or extreme situations will the courts step in to overrule the parents' decisions. For example, if a child might die without the medical care that the parents refuse to provide, a judge may make the child a ward of the state and order that the care be provided. Parents have been prosecuted for withholding medical treatment from seriously ill children. This is true even in situations where parents act out of religious belief.

There may be certain medical procedures that the law allows "mature minors" to decide upon for themselves, even if their parents disagree. For example, parents have no absolute veto power over a minor's decision to use contraceptives or to obtain an abortion. In addition, some states allow children of a certain age to seek mental health treatment or treatment for venereal disease without notification of the parents.

Parents also have the legal authority to control their children's behavior and social lives. Parents may discipline or punish their children appropriately. They may not, however, use cruel methods or excessive force; that constitutes child abuse.

Can parental rights be terminated?

A parent's rights can be terminated if a parent is unfit or has abused or abandoned the child. For example, in In re S.R. (Illinois Appellate Court, 2001), a father was in prison. The court said the man "could be a good father at times," but the court also said that the father had not seen his children for approximately two years, and the record did not indicate the father requested visitation while in prison. During the father's brief period of liberty, he did not provide financial support to the children, and he was unable to rear the minors due to alcohol, drug, and family problems. The court terminated the father's parental rights.

What are the legal rights of children?

Children have a unique status under the law. The law defines children as unmarried persons under the age of majority--usually eighteen--who have not left home to support themselves. The law protects children from abuse and neglect. It also entitles them to the protection of the state. Children may be removed from their home if it is necessary to ensure them a safe, supportive environment. This removal may be temporary or permanent.

Children have a right to be supported by their parents. At minimum, this means food, shelter, clothing, medical care, and education.

The law allows children to sue. However, in most instances an adult legal representative must begin the suit. The representative is often referred to as guardian ad litem for the child, or as next friend.

What are the rights of children who are accused of committing crimes?

Children accused of committing crimes are subject to the juvenile courts of the state in which the crime was committed, rather than the regular criminal justice system. Juvenile courts provide children with only some of the due process safeguards that adults receive. In return, juvenile courts have more freedom to deal with juveniles in an effort to rehabilitate them. In some states, children accused of serious crimes who are above a certain age--such as thirteen--may be tried in court as adults.

How long do parents' legal obligations to their children continue?

Parents are legally responsible for their children until they reach the age of majority (usually eighteen), marry, or leave home to support themselves. In some states, divorced parents may be obliged to pay for a child's college or trade school education. In addition, a parent's duty to support a disabled child might continue for the child's entire life.

Are parents financially responsible for the acts of their children?

The law on this varies from state to state. Some states make parents financially responsible for damage caused by their children, but the states may place limits on the amount of liability. In Illinois , for example, parents or guardians may be required to pay up to $2,500 for the "willful or malicious acts" of minor children who harm another person or property. If there is more damage than that, the child could be sued personally; if child had assets, they could be taken to satisfy the judgment.

Generally, if a child has an auto accident while driving a parent's car, the parent's auto insurance policy will cover the loss to the same extent it would if the parent had been driving the car (although parents usually have to pay higher insurance premiums to cover young drivers). In some states, the law may provide that if a parent knows or should have known that their child has a proclivity toward violent or malicious behavior, the parents may have a duty to take reasonable steps to control the child or give warning to persons the child might harm.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association