If you are a parent seeking to adopt a child, or have already adopted a child, there are a range of circumstances that might prompt you to consider engaging legal counsel. The list below is not intended to be exhaustive, but each circumstance speaks uniquely to a complex adoption-related situation that could make it necessary for you to seek the advice of an attorney to help resolve the matter.
1. International adoption
If you adopt a child overseas, there are advantages in seeking legal counsel in the home country of the adopted child. Adoption rules in the child’s country of residence will tend to vary greatly, and are often quite complex.
Legally, there are two intercountry adoption processes: the process under the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, and the non-Hague Adoption Convention process. Whether the Hague Adoption Convention applies depends on the identity of the other country involved in the adoption. In general, all aspects of intercountry adoption are more transparent under the Hague Adoption Convention. One significant Convention requirement is that prospective adoptive parents must participate in at least 10 hours of pre-adoption training before traveling overseas for the adoption. Under either legal regime, prospective parents can expect to be abroad for anywhere from several days to several weeks. Before an adoptive parent is permitted to bring a child home from abroad, U.S. Citizenship and Immigration Services must reach a finding that the parents are able to provide a loving, stable home for the child.
There are two principal channels for the completion of an international adoption. The first is via a private, nonprofit international adoption agency licensed by the U.S. state in which it operates. The second is a "parent-initiated" international adoption. Under a parent-initiated international adoption, prospective parents obtain a home study—a written document evaluating the applicant’s fitness as a prospective parent—from a licensed adoption agency or social worker. After this point, the adoptive parents are responsible for selecting and securing a foreign lawyer or agency who will, in turn, refer a child to them. The foreign agency or lawyer arranges for an adoption hearing in court (overseas), and tells the adoptive parents when to make their adoption trip.
For the purposes of obtaining formal recognition of the adoption in the United States (after returning with the child to the U.S.), you may also consider retaining U.S.-based counsel.
2. A lack of consent for the adoption from the birth father
In instances of private domestic adoption—i.e. placement of a U.S.-born infant for adoption by the infant’s birth parent(s)—the birth father’s consent for the adoption may be required, depending on the circumstances. In nearly all states, the father’s consent is required if the birth parents are married or were married within a certain time period before the birth of the child. If the parents were not married, but lived together either at the time of the child's birth, or within a certain time before the child's birth, the father’s consent is required in some states. If the biological parents were never married and never lived together, most states do not require that the father’s consent be obtained before the child is put up for adoption. Instead, the birth father is given notice of the intent to put the child up for adoption, and if the father does not challenge the adoption, his parental rights are terminated. If he does challenge the adoption, a hearing will be held to determine whether or not adoption would be in the best interests of the child.
If unique or unusual circumstances arise, such as the birth father refusing to provide his consent, or if the identity of the birth father cannot be ascertained (or he can’t be located), legal counsel can prove to be very valuable in the process of termination of parental rights.
3. The birth parents change their minds
Birth parents who give their consent for an adoption prior to birth sometimes change their minds after the child’s birth. Some hospital staff member might try to change the mind of the birth parents. Well-meaning family members might also try to do the same—sometimes months or years after the adoption has occurred.
Several states permit birth parents to revoke consent for adoption within a predetermined period of time. Also, there are situations in which revocation is permitted even well after birth. These include: if the birth parents and adoptive parents mutually agree to the revocation; if the adoption has not been finalized; if there was fraud or coercion in the initial obtaining of consent; and if revocation is in the best interests of the child. Particularly in the last two circumstances (where there are allegations of fraud, and/or the best interests of the child are being evaluated), adoption counsel can prove to be very helpful in protecting your interests and enhancing the likelihood that your adopted child can remain in your home.
4. A last-minute contested foster care adoption
Similar to a private domestic adoption, in which the birth parent changes their mind concerning consent after initially granting it, when adopting a child from foster care, it occasionally happens that an initially uncontested adoption becomes a contested adoption if a long-lost relative emerges at the last minute to request custody of the child. In these circumstances, legal counsel can assist you in advancing your claim to permanent custody of the foster care adoptee.
5. Child welfare authorities seek placement of a child in the care of alternative parents
Adoption from foster care is a complicated labyrinth, involving multiple parties, subsidies, numerous and varying laws and welfare policies, as well as other issues. It may occur that just as your adoption of a child from foster care appears to be on the verge of finalization, the local child welfare department announces that it has identified a permanent home for the child, other than your own, that will accept a minimal payment per diem. (Foster care parents are paid a per diem rate, with travel expenses and, sometimes, a clothing allowance for a child so long as they remain in foster care status in their home.) In this instance, a competing pair of potential caregivers have been introduced into the picture, potentially threatening your ability to obtain sole, permanent custody of the child. Legal counsel can enhance your chances of obtaining permanent custody.
6. Foster care has continued past mandated deadlines
In nearly all states, deadlines are imposed by court or by statute concerning how long a child can remain in foster care. In North Carolina, for example, children are required by law to be transitioned to permanent homes within one year of placement in foster care. Sometimes a transition within this time period proves impractical, and the child’s period of care in a foster home exceeds the mandatory deadline period. In such instances counsel, acting as your spokesperson, can assist in bringing the overdue nature of the foster care deadline to the court’s attention, and potentially facilitate the child’s placement into permanent care.
7. Dissolving an adoption
Rarely, an adoptive set of parents find that they are incapable or unwilling to continue in the role of adoptive parents. This is referred to as "dissolving an adoption." In order to allow this outcome, the examining court will typically require the adoptive parent(s) to demonstrate that dissolution of the adoption would be in the child’s best interests. As this burden falls on you as the requesting party, an attorney can assist in articulating to the court how the burden would be satisfied under your circumstances.
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.