Few legal processes carry more importance for all involved than the adoption of a child by new parents. Roughly 135,000 children are adopted by U.S. parents each year. This article provides a basic overview of who is permitted to adopt in the U.S., who may be the subject of an adoption, and some of the initial phases in the adoption process.
I. Who can adopt?
Adoption law is a creature of state law. In general, any single adult, or a husband and wife jointly, are eligible to adopt. In some states, married persons may adopt singly if they are legally separated or if their spouse is legally incompetent. Seventeen states require that adoption petitioners be state residents. State residency requirements do not apply in 13 states, as well as the District of Columbia.
There are age-based restrictions on adoption in many states. In Kentucky, Louisiana, Montana, New Jersey, Tennessee and Washington, prospective parents must be 18 years of age to be eligible to adopt; in three states—Colorado, Delaware and Oklahoma—the minimum age is 21; and Georgia and Idaho set the minimum age at 25. In California, Georgia, Nevada, New Jersey, South Dakota and Utah, the adopting parents must be at least 10 years older than the person to be adopted. In Idaho, the parent must be at least 15 years older.
A stepparent can adopt the birth child of his or her spouse. In Vermont, a person may adopt the child of his or her partner.
Adoption of U.S. Resident Children by non-U.S. Citizens Living in the U.S.
Some states require prospective adopting parents to be U.S. citizens, but most allow lawful permanent residents (LPRs) to adopt. Lawful permanent residents in the U.S., who wish to adopt a child who is not a U.S. citizen or LPR, will have more options to apply for the child to join them in the U.S. if they first become a U.S. citizen through naturalization. Alternatively, an LPR may bring an adopted foreign-born child to the United States, based on an approved Form I-130 immigrant visa petition in category "F2A," if the adopted child: a) was adopted when under the age of 16; and b) has been in the legal custody of, and resided with at least one adoptive parent for two years or more.
II. Who can be adopted?
Three states (Colorado, Indiana and Rhode Island) specify that any child who is to be the subject of a prospective adoption proceeding must be under the age of 18. A total of 25 states allow the adoption of any person, regardless of age. Iowa requires that the child must have resided for a minimum of 180 days in the home of the prospective adoptive parents. When the child being adopted is 12 or older, the child’s consent may also be needed. This varies by state.
In general, any person or entity who has the right to make decisions about a child’s care and custody may place that child up for adoption. Such persons include the birth parents, or the child’s legal guardian or guardian ad litem; legal entities include state departments of social services or child-placing agencies.
There are three general avenues of adoption in the U.S.: private domestic adoption, foster care adoption and international adoption.
Private Domestic Adoption
Private domestic adoption is also known as birth mother placement. Private domestic adoption refers to the placement of a U.S.-born infant for adoption by the infant’s birth parent(s), who legally consent to the adoption by adoptive parents of their choosing. Prospective adoptive parents can adopt through an agency or independently, usually through an attorney.
Foster Care Adoption and Interstate Adoption
Foster care adoption entails the adoption of children who are in the custody of the state or county department of child and family services. Such adoptions are typically handled by local public agencies and/or private agencies under state or county contracts.
The third avenue for adoption is the adoption of a child resident in a foreign nation. Foreign law will apply to that portion of the adoption that entails obtaining custody of the child in the foreign nation, and legal counsel should be sought to assist in this regard. The number of international adoptions by American parents has decreased by more than 60%, since reaching a peak of nearly 23,000 in 2004, to fewer than 8,000 in 2013. International adoption procedures intersect with U.S. state law after the child returns to the U.S. Fifteen states have no state statutory provisions regarding the adoption of children who are residents in foreign countries. Two jurisdictions (Michigan and the District of Columbia), though not maintaining statutory provisions regarding international adoptions, do provide in their judicial rules procedural guidelines for the acceptance of foreign adoption decrees. Twenty-five states grant the same effect to final decrees of adoption when issued in a foreign country pursuant to procedures that ensure due process to the same degree as a decree of adoption issued in the corresponding U.S. state.
In December 2012, Russia banned the adoption of Russian native children by U.S. parents. This step followed the controversial acquittal of an adoptive father by a Virginia state court on charges of involuntary manslaughter after the father left his developmentally delayed adopted Russian child in his car for nine hours while at work, resulting in the child’s death.
III. Initial Phases of the Adoption Process
The first legal step in adoption is the termination of the parental rights of a child’s birth parents. The last step is the finalization of the adoption in court.
Each state and territory in the U.S. has separate laws governing how birth parents can relinquish their parental rights, thus enabling their child to be adopted. A common tenet across state laws is that a child living in the U.S. may only be adopted if there has been a termination of parental rights (TPR) as to the child’s birth parents. A TPR is a legal process conducted pursuant to state law that entails a court hearing, during which a judge decrees a permanent end to all legal parental rights of a birth parent to a child. Termination of parental rights can be voluntary or involuntary—that is, with or without the birth parents’ agreement. In some states, there is a period during which the birth parent may appeal if the rights have been terminated without his or her consent. The length of that period varies from state to state.
The first steps in adoption are to complete pre-service training classes and an application to adopt. Next, a home study is conducted. The home study is a written document; an applicant will be assigned a caseworker who writes the home study, which will include basic information drawn from interviews with the applicant’s family, as well as information provided by third parties. Generally, a home study includes a study of:
- The prospective parents’ education and employment
- Family background, statements and references
- Relationships and social life
- Daily life routines
- Parenting experiences
- Details about the applicants’ home and neighborhood
- Readiness and reasons for adopting
The home study process can take between three to six months to complete. In order to complete the home study, a prospective adopting parent will need to provide several documents, including: one’s birth certificate; a copy of one’s marriage license, if applicable; copies of divorce decrees, if applicable; birth certificates for children already in the home and adoption decrees, if applicable; and a copy of one’s paycheck stub, w-4 form or completed income tax form.
This article is intended to provide a general overview of the circumstances and requirements described. It is not a substitute for reference to the actual Immigration and Nationality Act, its implementing regulations and state law.