Adoption is a process, requiring court approval, through which an adult becomes the legal parent of a child who is not his or her biological child. Married adults as well as single adults may adopt. In addition, an adult may be adopted, if they consent to the adoption.
Each state contains requirements and conditions prospective parents must satisfy before the adoption can take place. Adoption services are offered by both public and private agencies, or by a purely private process that does not involve an agency.
What is the Effect of an Adoption?
Adoption establishes a formal parent-child relationship for legal purposes. This means that, with respect to child support obligations, custody obligations and rights, as well as inheritance rights (i.e. rights under the laws of intestacy, or rights under a will or a trust), the adopted child is considered as if they were the parent or parents’ biological child.
Who is Allowed to Adopt?
Generally, the person seeking to adopt must themselves be an adult aged 18 years or older. A handful of states require that the parent be older than that (e.g., 21).
Same-sex couples may generally adopt. A handful of states, however, allow state-licensed child welfare agencies to refuse to provide adoption services to same-sex couples, if doing so conflicts with their religious beliefs.
What Facts About the Adoptive Parent(s) are Considered?
When considering whether a request to adopt should be granted, the following legal factors are examined:
- Financial Situation: Generally, individuals and couples seeking to adopt must demonstrate that they have the financial capacity to tend to the child’s primary needs of food, shelter, education, and clothing.
- Physical Health: The physical health of prospective adoptive parents is taken into account in determining whether an adoption will be granted. In some instances, one or both of the parents may be chronically or seriously ill. In such cases, a physician letter to the effect that the parent is physically able to care for the child, may be needed.
- Mental Health: The mental health of a prospective adoptive parent or parents is also considered. If one or both parents have a current psychiatric illness or disorder, and/or if there is a history of such disorder, a statement from a mental health professional to the effect that the parent is sufficiently emotionally stable to raise a child may be required.
- Criminal Record: The criminal history record of adoptive parents is examined before placement. Certain - but not all - criminal charges and convictions may serve as a bar to adoption. Generally, if a record of a prospective adoptive parent having committed child abuse is found, that record will likely serve as a bar to adoption.
Keep in mind that there may be factors involved in selecting adoptive parents that are not legal in nature. For example, many adoption agencies require that the adopting family do not have an infant or a child under a certain age. While this might be upsetting to families looking to adopt, this is not a legal factor and not something that the family can consider to be illegal or discriminatory.
What Kinds of Adoptions are There?
There are several types of adoptions. Adoptions are made either through a private or public agency, or by completely private means. Agency adoptions, whether public or private, are regulated by the state. Individuals seeking to adopt through an agency may be eligible for government subsidies and support services. Such individuals, however, may be subject to long waiting periods.
The agency adoption process also typically requires a home study be conducted before the adoption can take place. Home study involves interviewing applicants and all family members, including any children, to assess the applicants’ parenting abilities, attitudes toward adoption, and other social and personal characteristics.
As part of the home study process, personal references are contacted for further information. Onsite visits are also conducted to determine whether the home is safe, and can accommodate all family members, including the adopted child(ren). State home study requirements may be accessed by clicking here.
Purely private adoptions, also known as “independent adoptions,” are permitted in most states. Independent adoptions involve placement without agency involvement. The process involves prospective parents take an active role in identifying a birth mother, usually by newspaper or Internet advertising - in effect, advertising for a suitable donor (birth mother).
While not dealing with an adoption agency may result in a faster adoption, the independent adoption process is typically not subsidized by the government, and is minimally regulated. This means more things could potentially go wrong and there could be less support for the adopting parent(s) and the biological parent(s), as well as the risk of things like adoption fraud.
The main difference between agency and independent adoptions is how the child's birth parents relinquish their parental rights. In an agency adoption, the birth parents give their consent to adoption to either a private agency or a state agency. The adoption is then made. With an independent adoption, the birth parents relinquish their rights directly to the prospective adoptive family.
Is Court Approval Required for an Adoption?
All adoptions - whether agency-based or independent, must be approved by a court. The would-be parents must file an adoption petition, and then participate in an adoption hearing. If, upon conclusion of the hearing, the judge determines that the adoption is in the best interests of the child, the judge issues an order approving and finalizing the adoption.
Do I Need a Lawyer for Help with the Adoption Process?
If you need advice on the adoption process, speaking with an experienced family attorney can be of great value, as the family attorney can help explain adoption procedures and requirements to you. The family or adoption attorney can explain your options and rights, and can represent you in adoption hearings.