Exploring the Adoption Options

Peter WiernickiGeneralLeave a Comment

About the Author

Peter Wiernicki

Peter J. Wiernicki is a principal in the Rockville, Maryland law firm of Joseph, Wiernicki & Schimming, P.C. Admitted in Maryland, Virginia and the District of Columbia, his practice emphasizes adoption law, the law of assisted reproductive technologies (ART), education law, children’s issues, and litigation.

The process of building a family through adoption can seem daunting. Although adoption service providers — agencies, attorneys and social workers — may offer differing opinions, there is no “best way” to adopt. The best way for you to adopt is through a process that you are comfortable with, that complies with the law and meets your emotional needs.

The first step in exploring adoption is to understand the different types of adoption: international, domestic independent, domestic private agency and domestic public agency. An excellent way to visualize the different types of adoption is to imagine traveling down an adoption path. The first fork in the path is the first decision that prospective adoptive parents must make: domestic adoption — adopting a child residing within the U.S. — or international adoption — adopting a child from overseas.

The domestic adoption path will come to a fork leading to two other routes: independent adoption and agency adoption. In a domestic independent adoption, the birth parents directly consent to the adoption of their child by an adoptive parent(s). In a domestic agency adoption, birth parents relinquish their parental rights to a licensed child-placing agency, which in turn arranges for and consents to the adoption.

Those traveling down the domestic agency path will come to one additional fork prompting another decision: a private child-placing agency or a public child-placing agency.

International Adoption

Most often, the international adoption process begins with adoptive parents contracting with a licensed child-placing agency in the U.S. that has an adoption program in a specific country or several countries. International adoption is completed pursuant to the laws of the country in which the adoptive child resides. The U.S. agency assists the adoptive parents in preparing the required immigration documents and in identifying an adoptive child overseas. The adoptive parent(s) usually receive(s) some social and medical history on the child. Prospective adoptive parents can get assistance from a physician who specializes in working with adoptive children and can review and interpret foreign medical records.

All potential adoptive parents must complete a home study by a licensed child-placing agency in their state in order to obtain an orphan’s visa, which is required to bring their child home to the U.S.

To complete an international adoption, in most cases, adoptive parents travel to the foreign country to meet their baby or child and to take custody. At that time, they receive a final adoption decree. If both adoptive parents are present at the overseas adoption finalization, or the sole parent in the case of single adoptive parents, the child will receive an IR-3 visa from the U.S., which allows the child to automatically become a U.S. citizen upon returning home with his or her new parents.

Some countries (e.g., Korea, India) do not issue final adoption decrees. Instead, they appoint either the adoptive parents or their U.S. agency as guardians of the child. The child will receive an IR-4 visa and the adoptive parents must finalize their adoption in the U.S. This is also the case if one of the adoptive parents travels overseas for the adoption or if a single parent is adopting. Upon finalization in the U.S., the child automatically becomes a U.S. citizen. Many adoptive parents also choose to re-adopt their child via their state courts. This happens most often in states that do not have laws that automatically recognize foreign adoption decrees.

The U.S. Department of State website, www.state.gov, is a wonderful resource for information on adopting children from overseas and provides a breakdown of the adoption process in specific countries.

Domestic Independent Adoption

A domestic independent adoption is often referred to as a private adoption or a parental placement adoption. Each state has its own set of adoption laws that govern domestic adoption.

In a domestic independent adoption, adoptive parents seek out birth parents who wish to make an adoption plan. The process for locating birth parents is usually governed by the laws of the state in which the adoptive parents reside. For example, in Maryland, the law provides that anybody can assist adoptive parents in locating birth parents as long as that party is not paid. However, California law allows paid intermediaries, such as attorneys, to be involved in the matching process. In states where the use of a paid intermediary is prohibited, adoptive parents search out birth parents on their own, through newspaper and Internet advertisements and social networking. Prior to commencing an independent adoption, adoptive parents should consult with an experienced adoption attorney who practices in their state. In an independent adoption, it is good ethical practice for each party to be represented by their own attorney.

Adoptive parents who are working with birth parents who reside in another state may be able to finalize their adoption in the state where the child is born. State laws differ in several respects: (a) the period of time that birth parents have to revoke their consent to adoption, (b) the monies that adoptive parents may spend for the birth mother (i.e., legal, medical or living expenses), and (c) the time that it takes to finalize the adoption.

The birth parents must complete a social/medical history form, gather prenatal records, and make arrangements at the hospital so that the infant can be discharged to the adoptive parents.

Upon the birth of the child, the birth parents sign written consents to the adoption. Some states require a minimum time period to pass following the birth before birth parents can legally execute their consents. (this gives the birth parents time to think about or change their decision.) The adoptive parents then file a petition for adoption in the state court where the adoption is taking place, and the state court finalizes the adoption. The final adoption order includes a legal change of name for the child. Information about the adoption is provided to the department of vital records in the state where the child is born. A new birth certificate is created reflecting the child’s new parents and the child’s new legal name.

Domestic Private Agency Adoption

In a private agency adoption, adoptive parents work with a state-licensed, child-placement agency. The agency may or may not be located in the state where the adoptive parents reside. Private agencies require that adoptive parents complete a home study, which generally requires home visits and interviews with a licensed social worker or counselor. If the adoptive parents work with an agency outside their state of residence, the home study is completed by a private agency in their state.

Birth parents working with a private agency select adoptive parents enrolled with the agency. Upon the birth of the child, the birth parents execute consents in favor of the agency. The law of the state where the adoption agency is located governs the adoption. The agency then terminates the parental rights of the birth parents upon their legal consent. The newborn child is usually discharged from the hospital directly into the care of the adoptive parents. The private adoption agency, however, temporarily retains legal custody of the child. Following placement, the adoptive parents undergo post-placement supervision, which generally involves several home visits from the agency’s licensed social worker or counselor to assess and assist with the transition. The agency then gives consent to the adoptive parents to obtain custody, and the adoptive parents in turn file a petition for adoption.

Domestic Public Agency Adoption

In a public agency adoption, a city, county or state department of social services acts as a child-placing agency for children who have been subjected to abuse or neglect, or more rarely, who have been voluntarily given up for adoption by the birth parents at birth. In many public agency adoptions, birth parents’ parental rights have been involuntarily terminated. Adoptive parents may first serve as foster parents for their child, and in many cases, the adoptive parents may receive a financial subsidy after the adoption is finalized.

Adoptive parents who receive a child through a public agency undergo the same post-placement supervision that is required in a private-agency placement. After the birth parents’ parental rights have been terminated and the post-placement supervision has been completed, the public agency will give its consent to the adoptive parents. The adoptive parents then file their petition for adoption.

Almost all city, county and state governments offer public programs and seminars about their foster care and adoption programs.

In all domestic adoptions, any child that crosses state lines for adoption is subject to the Interstate Compact on the Placement of Children (ICPC), a uniform law of all states, the District of Columbia and the U.S. Virgin Islands, which establishes uniform legal and administrative procedures governing the interstate placement of adoptive children.

Today, family building through adoption is a prominent thread in our social fabric. Prospective adoptive parents have numerous choices available, far more than just a generation ago. The first step in exploring adoption is to appreciate all of the options that are available.

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