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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.

warning 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 2005 Nolo

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. For more on international adoptions, see Agency Adoptions.

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. For more information about stepparent adoptions, see Stepparent Adoptions.

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. For more on domestic partners, see Domestic Partnership Benefits. 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’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 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’ 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 2005 Nolo

Naming a Personal Guardian

You should name one personal guardian (and one alternate, in case your first choice can't serve) for each of your children. Legally, you may name more than one guardian, but it's generally not a good idea because of the possibility that the co-guardians will later disagree.

Here are some factors to consider when choosing a personal guardian:

* Is the prospective guardian old enough? (You must choose an adult -- 18 years old in most states.)

* Does the prospective guardian have a genuine concern for your children's welfare?

* Is the prospective guardian physically able to handle the job?

* Does he or she have the time?

* Does he or she have kids of an age close to that of your children?

* Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?

* Does the prospective guardian share your moral beliefs?

* Would your children have to move?

If you're having a hard time choosing someone, take some time to talk with the person you're considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

Choosing Different Guardians for Different Children

Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.

You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Or, if you have children from different marriages, they may be close to different adults. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Checkbook

Some parents name one person to be the children's personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.

For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as personal guardian and the other as custodian or trustee to manage your children's inheritance. (See Leaving Property to Young Children.)

If You and the Other Parent Can't Agree

When you and your child's other parent make your wills, you should name the same person as personal guardian. If you don't agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what's in the best interests of your child.

Again, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

If You Don't Want the Other Parent to Raise Your Child

If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This, of course, is what most people want.

If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

* has legally abandoned the child by not providing for or visiting the child for an extended period, or
* is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account. Judges are always required to act in the child's best interests. In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:

* the child's preference, to the extent it can be ascertained
* who will provide the greatest stability and continuity of care
* who will best meet the child's needs
* the relationships between the child and the adults being considered for guardian, and
* the moral fitness and conduct of the proposed guardians.

Making Your Wishes Known to the Guardian

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like a particular child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.

Copyright 2005 Nolo