The first legal step in adoption is the termination of the parental rights of a child's birthparents. The final step is the finalization of adoption in court, making you your child's permanent, legal parents. Along the way, there are many points where adoption laws will have an effect on your child's adoption.
Termination of Parental Rights (TPR)
This is a legal process involving a court hearing during which a judge issues a decree that permanently ends all legal parental rights of a birth parent to a child. This must occur before a child is considered to be legally free for adoption. Termination of parental rights can be voluntary or involuntary, that is, with or without the birthparents' agreement. In some states, there is a period during which the birthparent may appeal, if rights have been terminated without his or her consent. The length of that period varies from state to state.
Legal risk is a term used to describe a potential adoption in which the child to be adopted is placed with the adoptive parents before the birth parents' rights have been terminated.
An adoption is considered to be high risk if the rights have not yet been terminated, and it is expected that they may not be, because a birthparent or other relative will decide (and be approved) to parent. The adoption of newborn infants is often considered high risk.
When a birthparent has consented to an adoption, there is a time period during which he/she can change his/her mind (revoke consent). This time period varies by state. To learn about laws specific to your state or jurisdiction contact your county's Department of Children and Youth.
An adoption is considered low risk when the rights have not yet been terminated, but it is expected that they soon will be, and there is little likelihood of the child returning to the birth family.
Each state makes its own laws in the area of adoption, according to state statute. While some federal laws do apply, practices and policies can vary widely from one state to another or even from one county to the next. To learn about laws specific to your state or jurisdiction, visit the website of the Child Welfare Information Gateway or contact your county's Department of Children and Youth.
To help you on your way, there are a few people you will be in contact with. To adopt child or teenager, you will work primarily with an adoption agency. It is only at the end of the process that you will need an adoption attorney, who will prepare the paperwork to be filed and represent you in court.
Not every attorney is familiar with adoption. Your agency may be able to suggest someone with whom it works regularly. You can also check with the American Academy of Adoption & Assisted Reproduction Attorneys by calling 202-832-2222 or visiting their Attorney Directory here.
If you are adopting an infant through private adoption, your attorney will play a larger role, and you will want to take care in selecting the right individual. For more information, visit the Child Welfare Information Gateway’s website to access numerous publications on the legal aspects of adoption.
If you have chosen intercountry adoption, you will also have more need for an attorney. You can learn more through the Intercountry Adoption Bureau of Consular Affairs of the US Department of State.
A judge's role in the adoption process is to make any needed changes in the child's legal status. While a child is in foster care, their case is usually reviewed periodically in court to determine whether the goal should be reunification with the birth family or adoption. If the goal is changed, it must be done by a judge. A family court judge will make the decision to terminate parental rights of the birthparents, preside over the finalization hearing, and issue the adoption decree.
Court Appointed Special Advocate (or CASA) volunteers are trained community volunteers who speak for the best interests of a child in court. They are assigned by a judge to research an abuse or neglect case, and provide the judge with information to help in making a decision for the child's permanency. To learn more about CASA, click here.
In some jurisdictions, paid child advocates are assigned to each child in care. In this case, the child may have his or her own attorney, or the advocate may be a social worker affiliated with an attorney's or public defender's office.
Each state has an individual who is designated as its adoption specialist or manager. He or she can be a resource for answering questions that pertain to the adoption statutes of that state, and resolving difficult issues.
Adoption agencies are licensed by the state in which they are located. Some large agencies may be licensed in more than one state. Ask your agency to see their licensing or you can contact your state licensing specialist to find out if an agency you are considering working with is licensed in your state.
Each state in the United States and each province in Canada has a special department which deals with the affairs of children, youth and families, including child adoption. Some counties have a similar department. These departments go by many different names, and may be a part of the state's department of social services or human services. They provide services, case management, and permanency planning for children in foster care. Some also approve and license families for adoption.
Important legal adoption decisions are made in Family Court (also know as Orphan's Court in some jurisdictions. Responsibilities of the courts include:
- periodic review of a child's case
- the termination of the birthparents' parental rights
- setting a goal for a child's permanency
- reviewing that goal periodically
- changing the goal, if necessary, from reunification with the birth family to adoption
- finalizing the child's adoption
"Consent to adoption"
may refer to either of three different legal documents.
The first is a legal document signed by the birthparents to verify their intention to relinquish their child for adoption. It may be revoked, in some states, until the court enters a final termination decree.
A second consent to adoption is issued by the adoption agency allowing the adoptive family to finalize the adoption after all agency and legal requirements have been met. An adoption cannot be finalized without this consent.
When a child being adopted is twelve or older, the child's consent may also be needed. This varies from state to state.
Original Birth Certificate
The original birth certificate is a certified document which indicates a person's birth information, including the birth mother's name, birth father's name if known, the date, place, and time of birth and the name given to the child at birth. When a child is adopted, an amended birth certificate is issued.
The laws of the state in which the child was adopted determine who has access to the original birth certificate or other adoption records, and whether those records are sealed (unavailable). For information about the law in each of the 50 states and the District of Columbia, visit the Child Welfare Information Gateway.
Finalization is the legal process which transfers custody of the child from the adoption agency, county, or state to the adoptive parents. In a court hearing, an attorney represents the family and presents the case to the judge, resulting in the adoption decree. This is the moment when the adoptee becomes the permanent, legally adopted child of the adoptive parents. This process cannot occur until the adoptive parents have had the child in their home for the time determined by state statute, usually at least 6 months.
The finalization hearing, sometimes held in the judge's chambers, usually lasts less than an hour, and is attended by the adoptive parents, the child, the family's attorney, and a social worker from the child's agency. The judge may review the family's homestudy, ask questions, and generally attempt to ensure that the child is being placed in a safe, loving home.
The adoption decree, sometimes called adoption certificate, is the document issued by the court upon finalization of an adoption, stating that the adoptee is the legal child of the adoptive parents.
Amended Birth Certificate
This is a birth certificate issued after a child has been adopted, similar to the original birth certificate, but names the adoptive parents as the parents. An adopted child will have both an adoption certificate and a birth certificate, though they may only have access to the amended one.
Social Security Card
To claim your adopted child as a dependent for tax purposes, they must have a social security number. If your child already has a number when they are adopted, you may either keep the same number or have a new number assigned. If your child is receiving Social Security benefits, Supplemental Security Income payments, or if the child has worked, the Social Security Administration will not assign a new number, but will update the child's record. In any case, you will need to contact the Social Security Administration to be sure the number is registered correctly, reflecting you as the child's parent. To find the nearest local office, visit the Social Security Administration website at here.
Open Adoption Agreement
An open adoption agreement spells out the terms of the contact between the parties in an open adoption. An open adoption agreement can specify frequency and manner of contact between adoptive and birth families, and/or between siblings placed separately. However, while it may be drawn up in the form of a contract and signed by both parties, it is not legally binding.
Adoption and Safe Families Act (ASFA)
The Adoption and Safe Families Act of 1997 (ASFA) is a federal law which was established to promote the safety, permanence, and adoption of children in foster care.
The law limits the amount of time a child may stay in foster care by establishing shorter timelines for determining when they must have a plan for permanency. The law states that permanency court hearings must be held for children no later than 12 months after they enter foster care. The law also states that termination of parental rights proceedings must begin for any child who has been in the care of a state agency for 15 out of the most recent 22 months. Exceptions may be made to this requirement if the child is in the care of a relative or for other compelling reasons.
ASFA also promotes interstate adoptions by prohibiting state agencies from denying or delaying a child's adoptive placement when an approved family is available outside of the child's jurisdiction. All 50 states have passed legislation to comply with ASFA.
Your personal documents
In order to complete the homestudy, you will need to provide several documents, including:
- a copy of your birth certificate obtained from the bureau of vital statistics in your state,
- a certified copy of your marriage license, if applicable
- certified copies of divorce decrees, if applicable
- birth certificates for your partner or spouse
- birth certificates for your children and adoption decrees, if applicable
- A copy of your paycheck stub, w-4 form, or completed income tax form