If you are thinking about adopting a child, you should learn about the basic procedures used in most types of adoption. If you understand the rules about parental consent, know how a home study works, and review the typical court procedures, you will be better prepared for the sometimes long and emotional process of adoption. (To learn more about the different types of adoption available, read Nolo's article Types of Adoption.)
Consent to Adoption
For any adoption to be legal, the birth parents must consent to the adoption (unless parental rights have been legally terminated for some other reason, such as unfitness).
Most states won't let birth parents consent to an adoption until after the child is born, and some states require even more time -- typically three to four days after the birth -- before the parents can sign a consent form. This means that birth parents can legally change their minds about adoption at any point before the birth of the child because they haven't yet given their consent to the adoption. Be sure to check your state's laws. States differ widely on when birth parents can consent and when the consent becomes final.
Even after the birth parents have given their consent and the child has been placed in the adoptive home, many states allow birth parents to revoke their consent within a specified period of time -- in other words, to change their minds about the adoption. In some states this period can be as long as three months -- a nerve-wracking time period for the adoptive parents who have begun to care for the child.
This is one of the reasons why birth parents in some states must undergo counseling before giving their consent -- their intention to go through with the adoption is explored at an early stage in the hope of reducing the likelihood of a change of heart later.
Investigation of Adoptive Parents: The Home Study
All states require adoptive parents to undergo an investigation to make sure that they are fit to raise a child. This investigation is called a home study. Typically, the study is conducted by a state agency or licensed social worker who examines the adoptive parents' home life and prepares a report for the court with a positive or negative recommendation for adoption. The court makes the final decision.
The social worker gets information about issues considered important to the adoptive parents' ability to raise a child, such as:
- financial stability
- marital stability
- other children
- career obligations
- physical and mental health, and
- criminal history.
In recent years, the home study has become more than just a method of investigating prospective parents; it serves to educate and inform them as well. The social worker helps to prepare the adoptive parents by discussing issues such as how and when to talk with the child about being adopted and how to deal with the reactions of friends and family to the adoption.
If the social worker writes a negative report, the person wishing to adopt may contest the conclusion. Each state has different appeal procedures. Some states provide for a separate procedure, while other states make the appeal part of the adoption hearing.
All adoptions, whether handled by an agency or done independently, must be approved by a court. The adoptive parents must file an adoption petition -- basically a request for approval -- with the court and go through an adoption hearing.
Before the adoption hearing, anyone who is required to consent to the adoption must receive notice. Usually this includes the biological parents, the adoption agency, the child's legal representative if a court has appointed one, and an adopted child who is old enough (12 to 14 years old in most states). State laws vary on notice requirements.
A standard adoption petition will generally include:
- the names, ages, and residence address of the adoptive parents
- the name, age, and legal parentage of the child to be adopted
- the relationship between the adoptive parents and the child to be adopted, such as blood relative or stepparent
- the legal reason that the birth parents' rights are being terminated (the reason usually being that they consented to the termination)
- a statement that the adoptive parents are the appropriate people to adopt the child, and
- a statement that the adoption is in the child's best interest.
The written consents of the birth parents or the court order terminating their parental rights may be filed along with the petition. Adoptive parents also often include a request for an official name change for the child.
Adoption Hearing and Order
At the adoption hearing, if the court determines that the adoption is in the child's best interest, the judge will issue an order approving and finalizing the adoption. This order, often called a final decree of adoption, legalizes the new parent-child relationship and orders a name change if the new parents have asked for one.
Getting Help From a Lawyer
If you do not use an agency in your adoption, you will definitely need to hire a lawyer experienced in adoptions. Even if you do use an agency, you may need to hire a lawyer to prepare the adoption petition and to represent you at the hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be complex and should be handled by someone with experience and expertise.
When seeking a lawyer, find out how many adoptions the lawyer has handled, and ask whether any of them were contested or developed other complications. To learn more about choosing a lawyer, read Nolo's article How to Find an Excellent Lawyer. Or, go straight to Nolo's Lawyer Directory, where you can search the Family Law attorney listings. The comprehensive profiles include the lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law.
To learn more about adoptions and other laws that affect your daily life, get Nolo's Encyclopedia of Everyday Law: Answers to Your Most Frequently Asked Legal Questions, by Shae Irving and the Editors of Nolo.