By David J. Hardy // Attorney
Although adoption advocates commonly refer to the ancient Biblical origins of adoption (i.e., Moses in a basket), the law of adoption is a recent development. Blackstone’s Commentaries on the Laws of England, published in the mid-eighteenth century, says not a word about adoption, although it identifies two classes of children: “legitimate, and fpurious, or baftards,” the former being “he that is born in lawful wedlock, or within a competent time afterwards,” and the latter being, presumably, he (or perhaps even she) that is not. It also outlines parental responsibilities (maintenance, protection, education), power, and a similar relationship, that of Guardian and Ward.
Since the law of adoption emerged in the nineteenth century, it has been in regular development. At its consistent core, adoption is the creation of the relationship of parent and child. But in accomplishing this objective, surrounding principles are subject to change.
One recent area of legal development has been with respect to open adoptions. Several decades ago, the open adoption was unheard of, with most placements being handled by agencies that carefully concealed identifying information of both birth parents and adoptive parents. As adoption has evolved, however, most professionals have seen openness be a benefit to adoptees, birth parents, and adoptive parents.
Every situation is, of course, different. In some cases, such as may be the case with birth parents who are drug-addicted or habitual criminals, a close relationship may be problematic and detrimental to an adoptee. In others, birth parents have sufficient maturity to play an active role in parenting, even caring for the adoptee when the adoptive parents need a “child free” evening.
As openness has become common, so have agreements regarding openness. Agreements allow parents to set expectations and present the possibility that one or the other might be forced to comply. With this in mind, parents should give careful thought to an openness agreement. The following factors deserve consideration.
Can the agreement be enforced?
Only selected states allow the enforcement of open adoption agreements. Where enforcement is possible, the law does not allow for the adoption to be undone, but a court may enforce the agreement and require visits or an exchange of information. The law may also require mediation before a dispute is presented to a court. Parents should know in advance whether their agreement can be enforced. If the agreement is made in a state where such agreements cannot be enforced, a written agreement should state that all parties understand that the agreement is not legally enforceable.
What is required for an agreement?
In many states where agreements can be enforced, advance approval of the agreement by a court is required. In others, the agreement must include specific terms. Parents should be sure that their agreement satisfies any requirements. Consultation with an adoption attorney is recommended.
How formal should an agreement be?
If an agreement is to be enforceable, it should be in writing and approved by a court (if required by state law). If not, such formality is not always required. It can, however, be helpful for both birth parents and adoptive parents to express their expectations in writing. This need not be a written agreement but may instead involve a letter or letters. When done in advance, this can identify areas of possible disagreement and provide for resolution.
What should the agreement include?
Agreements generally address visits (how often, when, where, how long), other typs of contact (telephone, video conferencing, e-mail, social media), and information exchanges (updates, photos, videos). Things get tricky here because every open adoption is different. Some adoptive parents may be comfortable with regular visits, while others may resent that large chunks of valuable “family time” must be dedicated to a relationship with an outsider. Adoptive parents must use care not to over-promise and should present terms that they can comply with comfortably. Birth parents should not over-demand and should understand that the best open relationships are not characterized by an agreement but by strong bonds of love and respect. The key is to figure out what will work for all parents.
*Anticipate resolving disputes. *
It is generally prudent to figure out how to resolve any disputes without having to present them to a court. Although few disputes of this sort have been presented to courts, squabbles over visits and child-rearing are not generally favorites of judges. If there is a person or organization trusted by both adoptive parents and birth parents, an agreement might designate that person or organization as a possible mediator of any dispute. Alternatively, the agreement might provide that the parents seek input from an independent mental health therapist before a matter is presented to the courts.