Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

Advice for single people, married couples, domestic partners, and lesbians and gay men.

As a general rule, any adult who is considered a "fit parent" may adopt a child, but some states have special requirements for adoptive parents. In a few states, adoptive parents must be a certain number of years older than the child. In others, adoptive parents must be state residents for a specified length of time before they are allowed to adopt. If you're adopting through an agency, you may also have to meet additional agency requirements, which are often stricter than state laws.

In addition, some individuals or couples are likely to have more difficulty adopting than others. For instance, a single man or a lesbian couple may have a harder time finding a placement than a married heterosexual couple will, even though technically they should be able to adopt. This happens because all states look to the "best interests of the child" when making a placement determination. Many state courts or agencies will use the "best interests" argument to judge a prospective adoptive parent or couple according to preconceived biases about who makes a good or a fit parent. And sometimes birth parents who are placing their children with an agency for adoption have some of the same biases. Below we discuss the issues or roadblocks some folks are likely to run into.

Different Race or Ethnic Background

You do not need to be the same race as the child you want to adopt, but some states do give preference to prospective adoptive parents of the same race or ethnic background of the child. Adoptions of Native American children are governed by a federal law -- the Indian Child Welfare Act -- that outlines specific rules and procedures that must be followed when adopting a Native American child.

Lesbians and Gay Men

Only Florida and Utah specifically prohibit lesbians and gay men from adopting children, but that doesn't mean it's easy to adopt in other states. Even if sexual orientation is not specifically mentioned in a state adoption statute, it can become an issue in court. Some judges will use it to find a prospective adoptive parent to be unfit.

In addition, in some states it is difficult for a lesbian or gay person or couple to find an agency that will work with them.

On the other hand, gay men and lesbians all over the country do adopt children, and an increasing number of states are allowing gay and lesbian couples to adopt jointly. However, lesbians and gay men will need an experienced attorney to handle an adoption. Do your homework: The National Center for Lesbian Rights provides information for gay men and lesbians who want to adopt.

Single People

As a single person you may have to wait longer for a placement or be flexible about the child you adopt. Agencies often "reserve" healthy infants and younger children for two-parent families, putting single people at the bottom of their waiting lists. And birth parents themselves often want their children to be placed in a two-parent home.

If you're a single person wishing to adopt, you should be prepared to make a good case for your fitness as a parent. You can expect case workers to ask why you haven't married, how you plan to support and care for the child on your own, what will happen if you do marry, and other questions that will put you in the position of defending your status as a single person. To many single adoptive parents such rigorous screening doesn't seem fair, but it is commonplace.

Agencies serving children with special needs may be a good option for singles, because they often cast a wider net when considering adoptive parents. Being flexible about your choices will make it easier to overcome the resistance to single-parent adoptions.

Domestic Partners

There is no specific prohibition against unmarried couples' adopting children (sometimes called a two-parent adoption). Like singles, however, you may find that agencies are biased towards married couples. You may have a longer wait for a child, or you may have to expand your ideas about the child you are willing to adopt.

Copyright © 2006 Nolo

In a stepparent adoption you need to get the consent of the birth parent or have the birth parent's rights terminated.

In most states, a stepparent adoption is much easier to complete than a non-relative adoption. The procedure is generally the same as for other types of adoption, but specific steps are sometimes waived or streamlined. For instance, the waiting period, a home study, and even the adoption hearing are sometimes dispensed with in a stepparent adoption. The only difficult step may be getting the other birth parent to consent to the adoption.

Getting Consent

In all stepparent adoptions, the child's other birth parent will need to consent to the adoption because he or she is the other legally recognized parent. If the other birth parent refuses to consent, the adoption will not be allowed unless his or her parental rights are terminated for some other reason -- abandonment, unfitness, or failure to support the child, for example.

It may be difficult to get the consent of the other birth parent, because giving consent to the adoption means giving up all parental rights, including any right to visit the child or make decisions regarding issues such as medical treatment or education. Of course, some birth parents are willing to consent to stepparent adoptions because they agree that it's in the child's interest--or because they will no longer be responsible for child support once their parental rights are terminated.

Emotional Issues

Stepparent adoptions can be complicated when the non-custodial biological parent is still alive and in contact with the child. There may be no legal reason why the adoption cannot take place, but the emotional impact of the adoption also needs to be considered.
The impact on the child should be of primary importance. If an adoption will bring stability to your new family and help your child feel more secure, it may be the right choice. But no matter how well your child gets along with a stepparent, the child may still feel conflicting loyalties between his or her stepparent and birth parent, and this may be hard to handle. Generally speaking, the less contact a child has with the other birth parent, the more sense it makes for an adoption to take place.

Terminating Parental Rights

If the other birth parent refuses to give consent or is out of the picture and cannot be found, there are a few specific ways to proceed with a stepparent adoption.

Proving the absent parent has abandoned the child. First, it is possible to go forward without a biological parent's consent if you can prove that the absent parent has not exercised any parental rights and if you can convince the court that it's appropriate to legally terminate that parent-child relationship. Most states' laws allow parental rights to be terminated when a parent has willfully failed to support the child or has abandoned the child for a period of time, usually a year. Generally, abandonment means that the absent parent hasn't communicated with the child or supported the child financially.

Proving the absent parent is not the presumed father. If the absent parent is male, another common way to terminate his parental rights is to show that he is not, legally speaking, the presumed father of the child. Most states have statutes establishing who the presumed father of a child is in certain situations. In this case, you won't have to prove that the father has abandoned the child. You simply must show that he does not meet the legal definition of presumed father. For instance, in all states, a man who is married to a woman at the time she gives birth is legally presumed to be the child's father. Another way of establishing presumed fatherhood in many states is by marrying the mother after the child has been born and being named as the father on the child's birth certificate.

If you can show that the father doesn't meet any of the tests in your state for presumed fatherhood, the court may terminate his rights and allow you to proceed without his consent. (If, however, the father meets one of the state's tests for presumed fatherhood, you'll need either to obtain the father's consent to the adoption, or to have his rights terminated by proving abandonment, willful failure to support the child, or parental unfitness.)

Domestic Partners and Stepparent Adoptions

In a few states, stepparent adoption procedures are used in adoptions by same-sex partners. For example, in California, registered domestic partners may adopt their partners' children using stepparent procedures instead of the more cumbersome independent adoption procedures that were previously required. And in Massachusetts, where same-sex couples can marry, same-sex spouses can also use stepparent adoption procedures.

Copyright © 2006 Nolo

The advantages and disadvantages of skipping the agency when you adopt a child.

Independent adoptions are attractive to birth parents and prospective adoptive parents because they allow the people involved to keep control over the adoption process. However, there are risks and costs involved in independent adoptions that don't come with agency adoptions, as well as more work for the adoptive parents.

Advantages of Independent Adoptions

Many adoptive parents are reassured by knowing the birth parents personally and dealing with them directly, instead of being afraid that their adoption may fall apart before it is completed. Rather than relying on an agency as a go-between, the birth parent and adoptive parents can meet, get to know each other, and decide for themselves whether to go ahead with the adoption. Independent adoptions also avoid the long waiting lists and restrictive qualifying criteria that can be part of agency adoptions. And independent adoptions usually happen much faster than agency adoptions, often within a year of beginning the search for a child. Finally, independent adoptions can be less expensive than using an agency -- although the adoptive parents will have many of the same costs, like paying the birthmother's expenses, they will save the agency fees.

Disadvantages of Independent Adoptions

Many states place significant restrictions on independent adoptions. For example, states may prohibit adoptive parents from advertising for a birth mother, or limit the amount of money adoptive parents can contribute to the birth mother's prenatal care and medical expenses.

Another concern is that birth parents might not receive adequate counseling during the adoption process. States differ quite a bit on how much counseling they require birth parents to have before making their final decision to give up a child for adoption. If the birth parents do not get the required amount of counseling, this may make your adoption agreement vulnerable.

Some states extend the period during which birth parents may revoke their consent in independent adoptions -- making it longer than for agency adoptions -- and this places your adoption agreement at additional risk. If the agreement does fall apart, the prospective adoptive parents can lose significant investments of time and money without any recourse -- in addition to the heartbreak of losing the child they hoped for.

Even when they are successful -- and they do succeed quite often -- independent adoptions are a lot of work, even with a lawyer's help, which is almost always necessary. Adoptive parents often spend enormous amounts of time and money just finding a birth mother, not to mention the efforts required to follow through and bring the adoption to a close.

Check the legality of independent adoptions in your state. In a few states -- Connecticut, Delaware, Massachusetts, and Minnesota -- independent adoptions are illegal, although in these states it is possible to do an agency-directed adoption after you have identified birth parents. Be sure to check your state laws before you proceed.

The Costs of an Independent Adoption

Because each situation is unique, fees for independent adoptions vary widely. Prospective adoptive parents must generally cover the costs of finding a birthmother, the costs related to the pregnancy and birth, and the costs involved in the legal adoption process. Items such as hospital bills, travel expenses, phone bills, home study costs, attorneys' fees and court costs can often surpass $10,000. Some states allow the birthmother's living expenses during the pregnancy to be covered as well. (Usually, most of these expenses are subject to a federal adoption tax credit.)

All states allow adoptive parents to pay certain "reasonable" costs that are specifically related to the adoption process. Because it is illegal in any state to buy or sell a baby, each state has its own laws defining which expenses may be paid by adoptive parents in any kind of adoption proceeding -- agency or independent. If you pursue an independent adoption, you must adhere to these laws when you give any money to the birthmother. Most states allow the adoptive parents to pay the birthmother's medical expenses, counseling costs, and attorney's fees. Some states also allow payments to cover the birth mother's living expenses such as food, housing, and transportation during pregnancy.

Most states require all payments to be itemized and approved by a court before the adoption is finalized. Be sure to know and understand your state's laws, because providing or accepting prohibited financial support may subject you to criminal charges. And the adoption itself may be jeopardized if you make improper payments.

Open Adoptions

An open adoption is one in which the birth parents and the adoptive parents meet and get to know each other before the adoption, and, usually, in which the parties all come to an agreement about the birth parents having some degree of contact with the child after the adoption is finalized.

There is no one standard for open adoptions; each family works out an arrangement that works well for them. Some adoptive parents want to meet the birth parents just once before the birth of the child, while others form ongoing relationships. In some agreements contact is limited to the adoptive parents sending photographs on the child's birthdays, and in others the parties agree to regular visits between the birth parents and the child. (Although these visitation agreements are often part of the legal proceedings for the adoption, they are not enforceable by a court. If the adoptive parents don't keep up their part of the bargain, there's not much the birth parents can do.)

Open adoptions can help reduce stress and worry by eliminating the fear of the unknown. Adoptive parents are reassured by knowing the birth parents personally instead of being afraid that one day a stranger will come knocking on their door to meet their child. This openness can be beneficial to the child as well, who will grow up with fewer questions and misconceptions than a child of a closed adoption might have.

Copyright © 2006 Nolo

The procedures and costs involved when you adopt a child through an agency.

Using an agency to manage your adoption can be helpful for a number of reasons. Agencies are experienced in finding children, matching them with parents, and satisfying the necessary legal requirements. Agencies will help adoptive parents with everything from finding a birth parent to finalizing the adoption papers. An agency will take care of many of the crucial elements of the adoption, such as conducting the home study, obtaining the necessary consents, and advising them on any specific state requirements.

Private vs. Public Agencies

The key advantage of a private agency adoption is the extensive counseling that agencies provide. Typically, counseling is available for adoptive parents, birth parents, and the children (if they are older). Careful counseling can help everyone involved weather the emotional, practical, and legal complexities that can arise throughout the adoption process. And it's particularly important for the protection is provides the adoptive parents. A birth parent who receives appropriate counseling early in the process is less likely to change her mind when it comes time to sign the actual consent forms after the baby's birth.

On the down side, private agencies are often extremely selective when choosing adoptive parents. This is because they have a surplus of people who want to adopt and a limited number of available children. Agencies weed out parents based on age, marital status, income, health, religion, sexual orientation, family size, and personal history (including criminal conduct).

Public agencies have many children ready to be adopted, but they are often older or special-needs children. If you want a newborn or an infant, a public agency may not be able to help you. And public agencies generally do not provide the many other services, such as much-needed counseling, that private agencies offer. Of course, along with offering fewer services, public agencies come at a much lower cost. It may cost you next to nothing to adopt through a public agency (and the agency may even provide a small stipend during the adoption process), whereas a private agency adoption will cost many thousands of dollars.

Even if you do use an agency, you will probably need to hire a lawyer to draft 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 quite complex and should be handled by someone with experience and expertise. When seeking a lawyer, find out how many adoptions he or she has handled, and whether any of them were contested or developed other complications.

Cost of Agency Adoptions

Private agencies charge fees to cover the birth mother's expenses as allowed by state law; these expenses may include medical costs, living expenses during the pregnancy, and counseling. Add to this the agency's staff salaries and overhead -- and charges can mount up quickly.

Many agencies charge a flat fee for adoptions, while others add the birth mother's expenses to a fixed rate for the agency's services. Some agencies use a sliding scale that varies with adoptive parents' income levels, usually with a set minimum and maximum fee. You can expect to pay between $1,000 and $6,000 to adopt a young child, and $10,000 or more to adopt a newborn. Some agencies charge a lower rate for handling special needs adoptions.

Public agencies generally do not charge fees for placing children in adoptive homes.

Even if you use an agency, you may need to hire a lawyer to draft the adoption petition and to represent you at the adoption hearing. Although there is no legal requirement that a lawyer be involved in an adoption, the process can be quite complex. Attorney fees, of course, add to the cost of the adoption.

Waiting Periods

Agencies sometimes wait to place a child in an adoptive home until all necessary consents have been given and are finalized. Because of this, a child may be placed in foster care for a few days or weeks, depending on the situation and the state's law. The lag-time concerns many adoptive parents who want their child to have a secure, stable home as soon as possible. Some agencies get around this by placing infants immediately through a type of adoption known as a "legal risk placement." The risk is that the birth mother may decide she wants her child back before her rights have been legally terminated -- then the adoptive parents will have to let the child go.

Finding an Adoption Agency

There are an estimated 3,000 adoption agencies in the United States, public and private. If you live in a state like California or New York, you'll have more options than if you live in a less populated state. But wherever you live, you'll probably have to do some searching to find an agency that meets your needs and is able to work with you. You can contact a national adoption organization for referrals to get you started. One place to start is the National Adoption Information Clearinghouse. Also, talk to anyone you know who has adopted children -- personal referrals are often the best way to find a good agency.

When considering an agency, check out the agency's reputation and accreditation. Start with the licensing department of your state. It can tell you whether the agency has been cited for licensing violations and whether the licensing office has received any complaints about the agency. You can request a copy of the state rules governing adoption agencies so that you understand the standards your agency must follow. Your state department of social services or your state or local department of consumer affairs may also be able to give you information about the agency.

International Adoptions

You can adopt a foreign child through an American agency that specializes in international adoptions. (You can adopt directly, but most people use an agency since because direct adoption from an international country can be very difficult and the risk of problems is high.) An agency will know the U.S. immigration laws and the laws of the country of the child, as well as the adoption laws of your state.

U.S. immigration laws require that prospective adoptive parents be married or, if single, at least 25 years old. The adoptive parents must file an Orphan Petition (Form I-600) with the agency now known as U.S. Citizenship and Immigration Services (USCIS, formerly called the INS), to show that the child's parents have died, disappeared, or abandoned the child, or that one remaining parent is not able to care for the child and consents to the child's adoption and immigration to the U.S. If there are two known parents, the child will not qualify as an orphan under any circumstances.

Along with the Orphan Petition, you will need to submit a number of other documents, including a favorable home study report from the agency you choose. If USCIS approves the petition, and there are no disqualifying factors such as a communicable disease, the child can be issued an immigrant visa.

Much of the paperwork for an international adoption can be completed even before you have identified a specific child to adopt. Advance preparation is a valuable option because the paperwork often takes a long time to process, and may hold up the child's arrival in the U.S. even after all foreign requirements have been met.

Finally, be sure you check your own state laws for any preadoption requirements. Some states, for instance, require you to submit the written consent of the birth mother before they approve the entry of the child into the state. Some experts recommend that parents who adopt overseas readopt the child in their own state in order to make sure that the adoption fully conforms to state law, and in order to get a birth certificate that is in English. Sometimes, readoption is a legal necessity -- required either by the state in which you live, or by the country in which you adopted.

No foreign countries allow the adoption of children by openly gay or lesbian parents. Nonetheless, many lesbian and gay parents adopt children through international adoption procedures, keeping their sexual orientation a secret from the foreign country.

Copyright © 2006 Nolo

Learn about types of adoption, rules about consent, and how a home study works.

Types of Adoption

There are quite a few different ways to bring a child into your life, or confirm your legal relationship with one, through adoption. Here?��Ǩ�Ѣs the lowdown on the different ways that adoption can work.

Agency Adoptions

Agency adoptions involve the placement of a child with adoptive parents by a public agency, or by a private agency licensed or regulated by the state.

Public agencies generally place children who have become wards of the state for reasons such as orphanage, abandonment, or abuse. Private agencies are sometimes run by charities or social service organizations. Children placed through private agencies are usually brought to the agency by a parent or parents who have or are expecting a child they want to give up for adoption.

Independent Adoptions

In a private, or independent, adoption, no agency is involved in the adoption. Some independent adoptions involve a direct arrangement between the birth parents and the adoptive parents, while others use an intermediary such as an attorney, doctor, or clergyperson. But for most independent adoptions, whether or not an intermediary is used, an attorney will be needed to take care of the court paperwork.

Most states allow independent adoptions, though many regulate them quite carefully. Independent adoptions are not allowed in Connecticut, Delaware, or Massachusetts.

An "open adoption" is an independent adoption in which the adoptive parents and birth parents have contact during the gestation period and the new parents agree to maintain some contact with the birth parents after the adoption, through letters, photos, or in-person visits.

Identified Adoptions

An identified, or designated, adoption is one in which the adopting parents and the birth mother find each other and then ask an adoption agency to take over the rest of the adoption process. The process is a hybrid of an independent and an agency adoption.

Prospective adoptive parents are spared the waiting lists of agencies by finding the birth parent themselves, but they reap the benefits of the agency's experience with adoption legalities and its counseling services. Everyone may simply feel more comfortable if an agency is involved. Identified adoptions are available to parents in the states (Connecticut, Delaware, and Massachusetts) that ban independent adoptions.

International Adoptions

In an international adoption, the new parents adopt a child who is a citizen of a foreign country. In addition to satisfying the adoption requirements of both the foreign country and the parents' home state in the U.S., the parents must obtain an immigrant visa for the child through U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). The child will be granted U.S. citizenship automatically upon entering the United States.

Many countries with children available for adoption will not permit adoption by openly gay or lesbian parents; some countries, like China, require the adopting parent to sign an affidavit that he or she is heterosexual. Despite this, many gay and lesbian adoptive parents have successfully completed international adoptions as single parents, with their partners later becoming legal parents through second parent or stepparent adoptions in the United States.

You can adopt a foreign child through an American agency that specializes in international adoptions -- or you can adopt directly. Most people use an agency, because direct adoption can be difficult.

Stepparent Adoptions

In a stepparent adoption, a parent's new spouse adopts a child the parent had with a previous partner. Stepparent adoption procedures are less cumbersome than agency or independent adoption procedures. The process is quite simple, especially if the child's other birth parent consents to the adoption. If the other birth parent cannot be found or if he or she refuses to consent to the adoption, there is more paperwork to do and the adoptive parents may need an attorney.

Domestic Partner Adoptions

In California, a new law allows a same-sex domestic partner to adopt the children of his or her partner under stepparent adoption procedures, so that the process is relatively quick and easy. The parties must be registered as domestic partners with the state in order to qualify for these procedures. Similar procedures are used in Vermont for partners in civil unions.

Relative (Kinship) Adoptions

In a relative adoption, also called a kinship adoption, a member of the child's family steps forward to adopt. Grandparents often adopt their grandchildren if the parents die while the children are minors, or if the parents are unable to take care of the children for other reasons (such as being in jail or on drugs). In most states, these adoptions are easier than non-relative adoptions. If the adopted child has siblings who are not adopted at the same time, kinship adoption procedures usually provide for contact between the siblings after the adoption.

Consent to Adoption

For any adoption to be legal, the birth parents must consent to the adoption (unless their parental rights have been legally terminated for some other reason, such as unfitness).

Most states won?��Ǩ�Ѣt 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 give birth parents a specified period of time to revoke their consent -- 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 hopes 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 a licensed social worker who examines the adoptive parents' home life and prepares a report that the court will review before allowing the adoption to take place. The social worker makes a recommendation about whether the adoption should be approved, but a court always makes the final decision.

The social worker will commonly ask about a number of areas considered important to the adoptive parents?��Ǩ�Ѣ ability to raise a child:

• financial stability
• marital stability
• lifestyles
• 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 reaction that friends and family might have to the adoption.

If the social worker ends up writing a negative report that claims the adoption isn't in the child's best interests, you 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.

Court Process

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.

Notice

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 the child himself if he is old enough (12 to 14 years old in most states). States vary on the particular notice requirements, so check your state's laws.

Adoption Petition

A standard adoption petition will generally include this basic information:

• 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 birthparents' 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 interests.

The written consents of the birthparents 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 usually changes the child's name to the name the adoptive parents have chosen.

Lawyer Involvement

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 draft 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 quite complex and should be handled by someone with experience and expertise. When seeking a lawyer, find out how many adoptions he or she has handled, and whether any of them were contested or developed other complications.

Copyright © 2006 Nolo