When Your Client is a Birth Parent

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.

In the U.S., an expectant mother who’s making an adoption plan will choose to place either directly with adoptive parents or through a licensed child-placing agency. In a direct placement, often referred to as an independent or private adoption, the adoptive parents will be represented by their own attorney. Today, in almost all independent adoptions, at least one of the expectant parents is also represented by an attorney. (In the majority of such cases, it is the birth mother, not the birth father, who has her own lawyer.) Many adoption consent forms contain language advising a birth parent that he or she has the right to be represented by an attorney prior to the relinquishment of his or her parental rights.

An expectant mother may choose any attorney to represent her. An excellent resource is the American Academy of Adoption Attorneys.

Even in an agency placement, the expectant parent may request representation, but this is not common. In agency placements, consents are normally taken by an agency social worker, not an attorney. In some states, such as Maryland, minor birthparents must always be represented by an attorney, even in agency adoptions.

What Does the Birth Parent’s Attorney Do?

The adoptive parents’ attorney will prepare the necessary consents, as well as the adoption petition, and guide the case to finalization. During this time, what is the birth parent’s attorney doing?

In most cases, the expectant mother will meet with her attorney prior to the birth of the child. At that time, the attorney will:

  • Explain the applicable adoption laws and the process by which she will relinquish her parental rights.
  • Have the expectant mother complete a social and medical background form and a medical information release form.
  • If the birth father has not yet been notified about the adoption plan, it is often the expectant mother’s attorney who will contact him to confirm that he is in agreement with the adoption.
  • Coordinate any birth mother expenses permitted under state law, such as pregnancy-related medical expenses and living expenses.
  • Ensure that the expectant mother receives adoption-specific counseling.
  • Notify the hospital where delivery will take place and work with the hospital staff to ensure that the expectant mother’s wishes on access to the baby and discharge of the child will be met.

Upon the birth and placement of the child, the birth mother’s attorney will:

  • Meet with his client to obtain her consent or, if required by law, arrange for the adoption consents to be signed in court.
  • If the birth mother is placing with adoptive parents who reside out of state, her attorney will make the necessary application under the Interstate Compact for the Placement of Children (ICPC).
  • If the applicable adoption laws allow for a post-adoption contact agreement, the birth mother’s attorney will be involved in negotiating and preparing such an agreement.

The expectant mother’s attorney should represent his client throughout the entire process, regardless of the outcome. If she chooses not to go forward with the adoption, her attorney will advise her on the appropriate steps, such as notifying the adoptive parents or filing a revocation of consent.

Keeping Boundaries Clear

It is critical to understand that an attorney representing an expectant parent represents only that individual. While some states allow for dual representation of an expectant parent and the adoptive parents, if the parties agree so in writing, the practice of dual representation is almost universally avoided. Nor will the birth mother’s attorney represent the birth father, unless the birth parents agree to such an arrangement in writing and waive any potential conflict. The role of the expectant parent’s attorney is not to guarantee the outcome of the adoption, but to advise his client about the applicable adoption law and to advocate solely on her behalf.

Most states permit adoptive parents to pay the legal fees for an expectant parent. In such cases, the adoptive parents are referred to as third-party payers. They generally provide the expectant parent’s attorney with a monetary retainer, which will be placed in the attorney’s escrow account. As legal fees are generated on behalf of the expectant parent, the attorney draws his fees out of escrow. Such an arrangement ensures that the attorney is not influenced by the outcome of the adoption plan.

As with any attorney-client relationship, discussions between an expectant parent and her attorney are confidential. Ethical guidelines provide that, if the adoptive parents are represented by their own attorney, the expectant parent’s attorney may not communicate directly with the adoptive parents. Likewise, the attorney for the adoptive parents may not communicate directly with the expectant parent if she is represented. However, the expectant parents and the adoptive parents may always communicate directly, and, throughout the entire process, the attorneys will be working closely together.

When an expectant parent chooses to be represented by an attorney, it is important for all of the parties in the adoption to understand that the role of the attorney is to advocate for his client. Such independence ensures the integrity of the adoption proceeding.

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