Adoptive Parent Rights
Adoptive Parent Rights
To finalize an adoption means to go to court before a judge to receive legal permission and recognition that the child is yours.
There are also several other adoption issues affecting adoptive parents that are handled differently by different states. Here are a few of them:
- When an adoption can be finalized in court
- What medical and genetic information should be provided to the adopting parents
- Whether a home study is required, and if so, when it must be done
- Whether prospective adopters may advertise for birthparents
Again, I'll explain each issue in more detail.
Are We There Yet? Finalizing Adoption
When an adoption is finalized, the child is recognized as the adoptive parents' legal child. I'll explain the process of finalization more in Getting Ready for Your Adopted Child. For now, you should know that finalization times vary from state to state. In some states, it takes just a few months; in others, finalization may not occur for eight months or more. But in most states, finalization will occur at around six months after placement.
I can't emphasize enough that in most states this does not mean the birthparents can claim the child any time up until finalization in every state. Not at all. As explained earlier, many states make the consent to an adoption irrevocable upon signing, although others allow certain time periods during which consent can be revoked. (One exception is if the birthmother has been defrauded—in that case, she may be allowed to revoke consent, within a reasonable period of time from placement.) Very few states allow the birthmother to revoke consent until finalization.
Many states also require that the agency or attorney collect medical or genetic information, although most states don't specify exactly what information should be gathered. There are several reasons for collecting this data. One is that such information is valuable to the adoptive parent and later will be valuable to the adopted child.
Another is that in some rare cases, medical or psychiatric information that was known by an adoption arranger was withheld. A new tort called wrongful adoption has sprung up as a result. (A tort is a civil action for damages resulting from wrongdoing.)
Wrongful adoption refers to an adoption that would theoretically not have taken place had the adopters been given information that was known to the adoption arranger. The information was purposely withheld or misrepresented.
Wrongful adoption claims may not be upheld if the agency didn't have access to information or couldn't have known information because the birthparents or others didn't provide it or if the contract between the agency and the adopters limited their liability. Adoption arrangers should not be expected to be guarantors that the child is perfectly healthy, now and forever. They should, however, disclose all information that they do have. The first such case of wrongful adoption was Burr vs. Board of County Commissioners of Stark County in Ohio, in 1986. In 1964, the Burrs adopted a child. They were told his birthmother was a healthy young woman. In fact, she was a psychiatric inpatient, and other important information about the child himself had been withheld. After years of difficulty with the child, the information came to light when the Burrs obtained permission to open sealed adoption records.
It's important to note that wrongful adoption cases are rare, and the overwhelming majority of adoption arrangers provide prospective parents with all the nonidentifying information to which they have access. Still, there may well be a few misguided arrangers who fail to provide information, believing it will not matter to the child and will only upset the parents.
Adopting parents should always insist that they obtain all medical and psychiatric information about the birthparents and the child that is available to the arranger. I suggest that adoptive parents send a letter to the arranger stating that they assume they have received all medical, psychiatric, and social information and that if that is not true, they need to know right away. When adopting an older child, parents should find out the child's abuse and placement history.
Remember, if the agency does not have access to information, then they can't give it to you. Nor should you expect your child to be perfect because the agency didn't find any serious medical or psychiatric problems in the information provided.
Although it has long been standard practice in agency adoptions, many state laws now require preplacement home studies. This means the child cannot be placed until the family has been deemed suitable.
A preplacement home study is a background investigation and interview of the adopting parents, accomplished before a child is placed with the family.
A postplacement home study is a background investigation and interview of the adopting parents after the child has already been placed with the family.
Okay to Advertise?
State adoption laws differ on whether people who wish to adopt may advertise for birthparents in newspapers or other media. Some states ban such advertisements outright; others allow it. In a few states, the hopeful adopters must first have an approved home study.
Advertising works well for some people and not for others. Many adopters believe that they should have the right to advertise for birthparents. They argue that there are advertisements for strip clubs and all sorts of unsavory activities—how could advertising the desire to adopt be any worse?
Others believe that advertising reduces adoption and even children to the level of a commodity. This debate is likely to continue.