ADOPTION
A two-step judicial process in conformance to state
statutory provisions in which the legal obligations
and rights of a child toward the biological parents
are terminated and new rights and obligations are
created between the child and the adoptive parents.
Adoption involves the creation of the par-
ent-child relationship between individuals who
are not naturally so related. The adopted child is
given the rights, privileges, and duties of a child
and heir by the adoptive family.
Since adoption was not recognized at COM-
MON LAW, all adoption procedures in the United
States are regulated by statute. Adoption statutes
prescribe the conditions, manner, means, and
consequences of adoption. In addition, they
specify the rights and responsibilities of all par-
ties involved.
De facto adoption is a VOIDABLE agreement
to adopt a child, based on a statutory proceeding
in a particular state, which becomes lawful when
the petition to adopt is properly presented.
Equitable adoption, sometimes referred to as
virtual adoption, is treated by the law as final for
certain purposes in spite of the fact that it has
not been formally executed. When adoption
appears to comply with standards of fairness
and justice, some states will grant a child the
rights of one who has been adopted even though
the adoption procedure is incomplete. An equi-
table adoption might be enforced by the court
for the benefit of a child in order to determine
inheritance rights, for example. Similarly, adop-
tion by ESTOPPEL is the equitable adoption of a
child by promises and acts that prevent the
adoptive parents and their estates from denying
the child adoptive status.
Who May Adopt
To be entitled to adopt a child, an individual
must meet the qualifications under the laws of
his or her state, since the state has sole power to
determine who may become an adoptive parent.
Unless otherwise provided by state statute, U.S.
citizenship is not a prerequisite for adoption.
A child may be jointly adopted by a HUS-
BAND AND WIFE. If not contrary to statutory
provision, either may adopt without being
joined by the other. Unmarried people may
adopt unless prohibited by law.
A growing area of controversy by the courts
is whether adoption by a child’s grandparents is
a viable alternative. Such adoption might be
considered in the child’s best interests if the nat-
ural parents die or if the custodial parent is
found unfit. A legal guardian may adopt a child
but is not ordinarily given preference in the
court proceedings.
The best interests of the child are of para-
mount importance in policy considerations
toward adoption. Although legislative policy
prefers such conditions as adoption by people of
the same religion as the prospective adoptee, an
interfaith adoption is allowed when it does not
adversely affect the welfare of the child.
Elements in determining who will be suit-
able adoptive parents include race, religion, eco-
nomic status, home environment, age, and
health.Most of these criteria are taken into con-
sideration in placements by agencies or in pri-
vate placements where state law requires that
adoptive parents be investigated.
Who May Be Adopted
Since the status of an adopted person is reg-
ulated by state statutes that authorize the adop-
tion, state law determines whether an individual
is a proper candidate for adoption. In addition,
to be subject to adoption in a particular state,
the individual must be living within that state.
Children may be adopted in situations
where their natural parents are living, dead, or
unknown, or where they have been abandoned.
An adoption will not be prevented by the fact
that a child has a legal guardian.
Some statutes expressly limit adoption to
minors, and others expressly provide for adop-
tion of adults. The adoption of adults is
regarded by statutes and the courts in a manner
similar to the adoption of children. Practically,
however, the adoption of adults differs greatly,
since it serves different purposes and creates few
of the difficulties arising out of the adoption of
children. In most cases, the purpose of adult
adoption is to facilitate a device for inheritance.
One may designate an heir by adopting an adult.
Generally, the adoptee would not otherwise be
entitled to inherit but for the adoption.
Social Considerations
In the past, adoption was viewed primarily
as a means for a childless married couple to
“normalize” their relationship. The focus has
switched, however; now, adoption is ordinarily
seen as an institution that exists to help place
children into improved environments.
A number of states have, in recent years,
enacted statutes that permit subsidization of
adoptions. The adoption procedure thereby
became a social instrument for the improvement
of the lives of underprivileged children. Subsi-
dized adoption tends to encourage adoption of children by suitable individuals who would otherwise be unable to afford it. This type of adoption
has a significant effect upon placement of
children labeled hard-to-place. Such children,
who are frequently either physically or mentally
handicapped, might have no other alternative
except protracted institutionalization.
State law may require that the adopting parent
have custody of a child for a certain period
before obtaining an adoption decree. This
requirement is designed to prevent premature
action and to establish whether the best interests
of the child will be furthered by the adoption.
Transracial Adoption The issue of transracial
adoption (adoption of children who are not
the same race as the adoptive parents) has come
under close scrutiny by courts, legislatures, and
the public. Americans are sharply divided on
this issue. Is it a positive way to create stable
families for needy children and well-meaning
adults? Or is it an insidious means of co-opting
members of racial minorities and confusing
their sense of identity?
In 1972, when the number of African American
children adopted annually by white families
rose to fifteen thousand, the National Association
of Black Social Workers (NABSW) issued
its opinion on the subject. Igniting a furious
national debate that continued in the mid-
1990s, the association equated transracial adoption
with cultural GENOCIDE for African
Americans.
The NABSW and other minority groups
opposed to the adoption of African American
children by whites claim that the children are
deprived of a true appreciation and understanding
of their culture. Their childhood is skewed
toward white values and assimilation.Without a
sense of racial identity and pride, these children
cannot truly belong to the African American
community; yet, by the same token, racism prevents
their full inclusion in the white world.
Despite these arguments, some African
Americans applaud the unconditional love and
permanence offered by transracial adoptions.
Transracial adoption supporters argue that it is
much worse to grow up without any family at all
than to be placed with parents of a different
race. Because a disproportionate number of
African American children are placed in foster
care, mixed-race adoptions may be necessary to
ensure permanent homes for some African
American children. Transracial adoption may
also be viewed as an opportunity to achieve
INTEGRATION on the most basic level.
Controversies involving transracial adoption
soon found their way to the courts. In 1992, the
Minnesota Supreme Court upheld a district
court’s order to transfer a three-year-old African
American girl from her suburban Minneapolis
foster home to her maternal grandparents’ home
in Virginia (In re Welfare of D. L., 486 N.W.2d
375 [Minn. 1992]). Referred to as Baby D in
court records, the child had been raised since
birth by white foster parents who had been married
for twenty-four years and had already raised
three grown children. Baby D’s birth mother
placed her in foster care almost immediately
after delivery and had not seen the child since.
When no relatives could be found to claim the
child, the foster parents decided to adopt the
girl, whom they had grown to love.
When Baby D’s grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter’s three other children.) When the foster parents’ petition to adopt Baby D surfaced, the grandparents vigorously opposed it.
The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An
intermediate appeals court and the Minnesota
Supreme Court agreed with the lower court that
under the law, the Virginia grandparents must
be granted custody. Despite the white foster parents’
argument that they had provided security
and loving care for the child, the grandparents’
claim to Baby D was superior. Although many
African Americans applauded the decision,
some critics questioned the constitutionality of
a law favoring same-race adoption.
A similar case in Lexington, Texas, produced
a different result in 1995. Two foster parents,
Scott Mullen and Lou Ann Mullen, who are
white and Native American, respectively, applied
to adopt two African American boys in their
care. Initially, social workers for the Texas
Department of Protective and Regulatory Services
denied the Mullens’ request, stating that
departmental policy required them to seek
adoptive parents of the same race as the children.
A civil liberties group called the Institute for
Justice filed suit against the department on
behalf of the Mullens. The institute also filed
suits in other states, arguing that adoption decisions
based on race are unconstitutional. The Texas department reconsidered and allowed the
Mullens to adopt the boys despite race differences.
Another statute affecting transracial adoptions
is the INDIAN CHILD WELFARE ACT of 1978
(25 U.S.C.A. § 1901 et seq.) (ICWA), a federal
law giving special preference to family and tribal
adoptions of Native American children. Prior to
its enactment, nearly one quarter of all Native
American children were removed from their
parents’ care and placed in foster care, through
which some were adopted. ICWA’s sponsors
argued that the adoption of Native American
children by white parents was not necessarily in
the children’s best interests and was unquestionably
harmful to tribal membership. The law was
intended to preserve Native American culture
and to support an Indian child-rearing philosophy
that relies heavily upon the extended family.
Under the 1978 law, tribes have jurisdiction
over the proposed adoption of any Native American
child living on a reservation. Extended families
or tribal placements are given automatic
priority over all other applicants.
Another law covering transracial adoptions
is the Multiethnic Placement Act of 1994 (42
U.S.C.A. §§ 622, 5115a, 5115a note). Sponsored
by Senator Howard M. Metzenbaum (D-Ohio),
the law prevents federally assisted child welfare
agencies from screening prospective adoptive
parents on the basis of race, color, or national
origin. Although agencies may still consider the
cultural or racial identity of children when making
permanent placements, the law is intended
to prevent discrimination and to speed the
adoption process. The intention of the law is to
give thousands of minority foster children who
are eligible for adoption a greater chance of
finding permanent homes.
Same Sex Adoption
Several states have laws
on the books that permit second-parent adoptions
by same-sex couples, including Connecticut,
the District of Columbia, Illinois,
Massachusetts, New York, New Jersey, and Vermont.
In 18 other states, trial courts have
granted second-parent adoptions to same-sex
couples. In other words, these states do not have
laws permitting adoptions statewide, but adoptions
may be granted in county family courts on
a case-by-case basis. These states are Alabama,
Alaska, California, Delaware, Georgia, Hawaii,
Indiana, Iowa, Louisiana, Maryland, Michigan,
Minnesota, Nevada, New Mexico, Oregon,
Rhode Island, Texas, and Washington. In states
where there is no statewide law permitting second-
parent adoptions, the odds of a trial court
granting an adoption vary from county to
county. Many of the courts that approve these
adoptions are located in metropolitan areas
where judges may be more liberal than their
rural counterparts.
While the majority of states do not specifically
prohibit gays and lesbians from adopting
children, three states prohibit the practice.
Florida’s law is considered the nation’s toughest,
because it prohibits adoptions not only by gay
couples, but also by gay individuals. In 2000, an
Arkansas law was passed which prohibited gays
and lesbians from becoming foster parents.Mississippi
also has legislation barring gay couples
from adopting children. The ACLU is challenging
that law.
Consent
Virtually all statutes make parental consent
to adoption an indispensable condition. Most
statutes set forth detailed requirements for the
form and procedure of such consent. Ordinarily,
statutes dispense with the parental consent
requirement only when a parent has reached a
serious level of unfitness that would be so significant
as to terminate parental rights, or when
such rights have already been judicially terminated.
In addition to parental consent, most states
require a child to consent to the adoption if the
child has reached a certain age, generally
between ten and fourteen years.
The increasing number of divorces has
resulted in deemphasis of the necessity of consent
to adoption by noncustodial parents, the
purpose being to ease integration of children of
a former marriage into the family created by a
subsequent marriage. Some statutes allow adoption
without the consent of the noncustodial
parent if that parent has been unable to or has
failed to contribute to the support of a child for
a certain period of time. Courts are more
inclined to find abandonment—a common
ground for termination of parental rights—in
cases involving noncustodial divorced parents.
Unmarried Father’s Consent Historically, if
a child was illegitimate, most jurisdictions
required only the consent of the child’s natural
mother to the adoption of the child. The right to
grant or withhold such consent was not
extended to the fathers of illegitimate offspring,
since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be
released for adoption.
In 1979, this trend was reversed in Caban v.
Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L.
Ed. 2d 297 (1979). The key issue was whether
the consent of an unwed biological father need
be obtained before an adoption could be finalized.
In Caban, a mother of illegitimate children
and her husband filed a petition for adoption.
The children’s natural father filed a cross petition
to adopt. The New York Surrogate’s Court
granted the mother’s petition, and the natural
father appealed. The decision was affirmed by
the Supreme Court, Appellate Division, and
subsequently affirmed by the New York Court of
Appeals.
On appeal, the U.S. Supreme Court ruled
that a law depriving all unwed fathers of the
right to decide against adoption, whether or not
they actually took care of the children in question,
was unconstitutional and a form of SEX
DISCRIMINATION. The unwed father in Caban
had lived with the mother of the children for five
years prior to the birth of the children. The
Court held that he had the right to block their
adoption by a man who subsequently married
the mother.
Consents that are signed by the parents
either immediately before or after the birth of
the child may be particularly subject to challenge
by the natural mother. Owing to the
mother’s weakened physical and mental condition,
findings of involuntary consent frequently
have been handed down in such cases.
A parent can forfeit the right to give or deny
consent for the adoption of his or her child in
certain instances. Abandonment, the nonperformance
of the natural obligations of caring for
the child, including support, is one such case.
The PARENT AND CHILD will ordinarily be kept
together by the courts when the parent exhibits
a continuing interest in the child’s welfare.
A finding of ABANDONMENT may terminate
a parent’s rights and free the child for adoption
with or without parental consent. A parent’s
rights may also be severed in cases of serious
CHILD ABUSE or neglect. Some statutes provide
that a noncustodial parent cannot VETO an
adoption; however, that parent is generally entitled
to be heard when a court considers the case.
This is particularly true when the parent has
established some kind of family tie with the
child, either by having been married to, or having
lived with, the custodial parent or by taking
the child into his or her home.
State law may require that if a child has been
placed in the custody of an agency, the agency’s
consent is a prerequisite for an adoption. Similarly,
consent of a guardian having custody of a
child is necessary. The consent of the natural
mother’s parents may also be required if she is
under eighteen years of age and unwed.
Invalid Consent If coercion or deception
plays any part in the decision to terminate
parental rights, the birth parent’s consent may
be ruled invalid. In the wake of the highly publicized
battle over “Baby Jessica,” it appears that
regardless of the length of time or quality of a
child’s placement, the consent rights of the
birth parents outweigh the best interests of the
child.
In an agonizing case that divided the adoption
community, Michigan couple Roberta
DeBoers and Jan DeBoers lost custody in 1993
of Jessica, the two-and-a-half-year-old child
they had raised from birth (In re Clausen, 442
Mich. 648, 502 N.W.2d 649 [1993]). Courts in
both Iowa and Michigan concluded that the
necessary consent by Iowa birth parents Cara
Schmidt and Daniel Schmidt was flawed. After a
protracted legal battle, Jessica was ordered to
return to Iowa to live with her biological parents.
Shortly after Jessica’s birth on February 8,
1991, the DeBoers filed a petition in Iowa juvenile
court to adopt her. The couple, who for ten
years had tried to conceive or adopt a child, were
named her temporary guardians and custodians.
When Jessica was less than four weeks old,
however, birth mother Cara Clausen sued to
have her maternal rights restored. The birth
father, Dan Schmidt, also sought custody.
Unmarried at the time, Clausen had signed a
release-custody form, terminating her parental
rights, approximately forty hours after giving
birth to Jessica. (Iowa law requires a seventytwo-
hour waiting period before waiving
parental rights.) The man Clausen identified as
the child’s father—not Schmidt—also signed a
release form. Seventeen days later, Clausen
informed Schmidt that she had lied on the
release form and that Schmidt was actually the
father.
On March 6, 1991, Clausen sought to revoke
the custody agreement, naming Schmidt as the
child’s father. Upon learning that he was the baby’s father, Schmidt filed an AFFIDAVIT of
PATERNITY and asked for a court intervention to
prevent the adoption proceedings. Clausen and
Schmidt were married shortly thereafter.
The district court and subsequent courts
determined that Dan Schmidt was indeed the
biological father and that he had not agreed to
have his parental rights terminated. Because he
had not abandoned the baby, it was not clearly
in the best interests of Jessica to remain with the
DeBoers. Also, the parental rights waiver signed
by Cara Schmidt was invalid because the statutorily
imposed waiting period had not been
observed. Therefore, early in the legal skirmish,
the court ordered the baby returned to the
Schmidts.
The DeBoers continued to fight Jessica’s
removal from their custody. With the legal
maneuvering and delays, the case stretched out
over a twenty-nine-month period. By the end,
the DeBoers had developed a close bond with
Jessica, even though they knew from the time
Jessica was an infant that their claim to her
might not hold up in court. But with the passage
of time, the DeBoers could make a powerful
claim that Jessica needed them more than the
Schmidts. After all, they were the only parents
she knew. The DeBoers argued that it was in Jessica’s
best interests to remain with them, or she
could face possible emotional and psychological
damage.
After Iowa courts refused to change position
on the custody, the DeBoers took their case to
Michigan, hoping that the best-interests-of-thechild
argument would be persuasive. However,
Michigan courts also agreed that Jessica should
be returned to her Iowa birth parents. She was
delivered to the Schmidts on August 2, 1993, and
renamed Anna.
Methods of Adoption
There are several types of adoption placement
procedures. Foreign adoptions are affected
by the policies and procedures of the adoptees’
countries. Agency placement and independent
placement are governed by statute, as is adoption
by contract or by deed. Some people adopt
through illegal purchase of a child or arrange to
have a child by a surrogate mother.
Foreign Adoption Because of the scarcity of
healthy babies for adoption in the United States,
many U.S. citizens are pursuing adoption of
orphaned and abandoned babies from foreign
countries.
Most U.S. parents with children in foster
care do not relinquish their parental rights. Foster
children in the U.S. may also be difficult to
place because many are older and carry the emotional
scars of physical or SEXUAL ABUSE.
Since the 1950s, U.S. couples have adopted
thousands of Korean children. The number of
Korean adoptions is declining, however, reportedly
because the Korean government is uncomfortable
with its reputation as a baby exporter.
On the other hand, children from South America
are being adopted in greater numbers by U.S.
citizens, as are children from China, Romania,
and Russia. In these countries, poverty, natural
disasters, abandonment, war, and collapsed governments
have resulted in an increased population
of needy children.
Each country has different adoption policies
regarding the age, income level, and marital status
of prospective parents. Often, foreign adoptions
are handled privately. Countries may allow
children to be escorted to the United States or
may require adoptive parents to come and stay
for days or even months to complete the adoption
paperwork. The costs of adoption also vary
from nation to nation.
Agency Placement
In agency placement of
a child, the arrangements are made by a licensed
public or private agency. Such agencies exist
solely for the placement of children, and part of
their responsibility involves a thorough investigation
of the suitability of the potential adoptive
parents. Such an investigation is ordinarily quite
detailed and takes into consideration the background
of both child and prospective parents.
Statutes generally provide for agencies that
are operated or licensed by the government to
act in an intermediary role between natural and
adoptive parents. The method by which a child
is transferred to an adoption or placement
agency is by the execution of a formal surrender
agreement that the natural parents sign. By surrendering
a child to an agency, the parent relinquishes
all rights to the child. The agency is then
given complete authority to arrange for adoption.
In arranging for an adoption, agencies
must take into consideration such issues as
whether a particular child is a proper subject for
adoption, whether the proposed home is a suitable
one, and whether the adoption is in the
child’s best interests.
Agency placement has three basic advantages:
(1) It minimizes such risks as the adoption
of nonhealthy children, the discovery of the
adoptive parents’ identity by the natural mother,
and the natural mother’s changing her mind
about the adoption. (2) The suitability of adoptive
parents is determined by a stringent investigation,
which minimizes the risk that a child will
be adopted by unfit parents. (3) Adoption
through an agency minimizes fees incidental to
the adoption.
One essential disadvantage of agency placement
is that it involves a long, detailed process.
The adoptive parents might be forced to wait for
many months while they are being investigated
as to their suitability. A second disadvantage of
agency placement is that only a limited number
of children are available for adoption through
agencies.
Independent Placement In independent
placement, or private adoption, a child is
directly transferred from the natural mother, or
her representative, to the parents seeking to
adopt. This type of placement is ordinarily
arranged by the natural mother’s family or doctor.
Generally, neither the natural nor the adoptive
parents are thoroughly investigated. The
adoptive parents often arrange to pay all medical
bills incidental to the pregnancy and birth, in
addition to legal expenses. Private adoptions are
lawful in most states.
Like agency placement, independent placement
has both advantages and disadvantages.
Private placement facilitates the adoption of a
child by parents who might otherwise be forced
to endure an extended waiting period or who
might be unable to find a child through agency
channels because of stringent requirements or
mere nonavailability of adoptable children. As
with all adoptions, there is an inherent risk that
the natural mother might change her mind and
never complete the adoption procedure. With
some private adoptions, the natural mother
remains anonymous.With others, her identity is
known to the adoptive parents at the outset.
Independent placement aids mothers who
do not have financial resources, by arranging for
the payment of medical expenses by the adoptive
parents. Such a procedure can, however, lead
to a black market if not carefully monitored.
Other disadvantages of private placements
are the risks of adoption of an unhealthy child
or of nonsuitability of the adoptive parents.
Some states prohibit lawyers from obtaining
babies for adoption by clients under any circumstances.
Attorneys, however, are ordinarily
permitted to accept fees for handling the legal
aspects of adoption.
Surrogate Motherhood During the 1980s,
many infertile couples turned to SURROGATE
MOTHERHOOD as an alternative to traditional
adoption. A surrogate mother was paid a fee to
bear a child conceived through ARTIFICIAL
INSEMINATION. Once the child was born, the
surrogate mother agreed to terminate her
parental rights in favor of the sperm donor, typically
the husband of the woman unable to have
children. For public policy reasons, paid surrogate
motherhood has been denounced as an
unacceptable means of buying and selling
babies.
The wrenching “Baby M” case proved to be
the ultimate downfall of surrogate motherhood
contracts. In IN RE BABY M, 109 N.J. 396, 537
A.2d 1227 (1988),Mary Beth Whitehead entered
a written agreement to bear the child of William
Stern, whose wife, Elizabeth Stern, was unable to
have children.Whitehead was to be paid $10,000
for her services.When the baby girl was born in
1985,Whitehead refused to give her up and fled
with the infant to Florida. Four months later, she
was apprehended by authorities, who gave the
baby over to the Sterns.
Despite Whitehead’s efforts to regain the
child, the New Jersey Superior Court stripped
her of parental and VISITATION RIGHTS and
allowed the Sterns to adopt the baby, whom they
had named Melissa. The decision had little to do
with adoption policy but centered primarily on
contract enforcement. The court ruled that
Whitehead was obligated to honor her contract
with the Sterns.
The New Jersey Supreme Court reversed the
lower-court decision, declaring that surrogate
motherhood contracts are unenforceable
because they violate public policy. The Sterns
were allowed to maintain custody of Baby M,
although the adoption was voided and some of
Whitehead’s parental and visitation rights were
restored. After the decision, most states passed
legislation to prohibit surrogate motherhood
contracts altogether.
Adoption by Contract or Agreement Generally,
an adoptive relationship cannot be
formed by private contract, either express or
implied. Although adoption contracts are not
usually considered to be injurious to public welfare,
they are discouraged on the basis of the
principle that a parent should not be permitted
to trade away his or her child.
A court may, however, choose to treat a contract
of adoption as an agreement to be
enforced, with the outcome being equivalent to
a formal adoption. The courts have upheld contracts
between parents and institutions. In addition,
in a number of states, an adoption contract
between a natural parent and an institution that
provides that the parent is not to be informed of
the child’s location is enforceable.
Since courts are not eager to deprive natural
parents of the right to care for a child, adoption
contracts are not enforced when they are in conflict
with the welfare of the child. Some states
provide that a contract made by one parent
alone, absent a showing of clear consent by the
other, is not valid. The procedure for adoption
by a written declaration or deed is permitted in
some states. Ordinarily, it must be properly
recorded before the adoption will be valid.
Revocation A court will allow an agreement
for the adoption of a child to be broken by a natural
parent if the circumstances warrant it, such
as when a parent was forced into an adoption
agreement.
The court has discretion over whether to
permit revocation of an adoption agreement. In
such cases, the court will scrutinize the circumstances
under which the parent gave consent as
well as the parent’s reasons for revoking the contract.
Consequences of Adoption
Adoption ordinarily terminates the rights
and responsibilities of the natural parents to the
child. The death of an adoptive parent does not
restore the rights of the natural parents.
Adoption creates the same rights and
responsibilities between a child and adoptive
parents as existed between natural parent and
child. An adopted child is entitled to the same
rights as a natural child. When an adult is
adopted, however, the adoptive parent does not
assume the usual duty of support.
State law governs whether or not the name
of a child will be affected by adoption. When a
minor child is adopted, his or her legal residence
is changed from that of the natural parent to
that of the adoptive parent.
Inheritance A state legislature has the
authority to impart or remove inheritance rights
of adopted children or adoptive parents. Statutes
usually provide that adopted children can
inherit from adoptive parents in the same capacity
as natural children and, conversely, adoptive
parents can inherit the property of an adopted
child who predeceases them.
Revocation of Adoption
If an adoption decree is acquired by FRAUD,
it may be revoked. In addition, in the absence of
the requisite consent of all concerned parties, an
order of adoption is void. After a decree is
revoked, a child assumes the status she or he had
prior to the adoption proceedings.
Summary of Adoption Procedure
The formal steps in adoption of a child are
generally uniform in all states.
Notice Notice of adoption proceedings is
given to all parties who have a legal interest in
the case except the child. In the case of ILLEGITIMACY,
both natural parents should be given
notice if they can be located.
Some statutes provide that a parent who has
failed to support a child is not entitled to notice.
Ordinarily, a parent who has lost custody of a
child in a DIVORCE or separation case is, however,
entitled to notice. Similarly, an adoption
agency that has custody of the child is entitled to
notice.
Petition The parents seeking to adopt must
file a petition in court that supplies information
about their situation as well as the situation
of the child. The filing of a proper petition
is ordinarily a prerequisite to the court’s jurisdiction.
The petition indicates the names of the
adoptive parents, the child, and the natural parents,
if known. In addition, the child’s gender
and age are stated, and some states mandate that a medical report on the child must also accompany the petition. An example of such a petition
is found on page 98.
Consent Written consent of the adoption
agency or the child’s natural parents accompanies
the petition for adoption. Consent of the
natural parents is not required if their parental
rights have been involuntarily terminated as a
result, for example, of abandonment or abuse of
the child.
Hearing A hearing is held so that the court
may examine the qualifications of the prospective
parents and either grant or deny the petition.
There must be an opportunity for the
parties to present testimony and to examine witnesses
at such a hearing.
Adoption proceedings are confidential, so
the hearing is conducted in a closed courtroom.
Ordinarily, the records of an adoption hearing
are available for inspection only by court
order. Confidentiality is thought to promote a
sense of security for the child with his or her
new family.
Probation Most states require a period of
PROBATION in adoption proceedings. During
this period, the child lives with the adoptive
parents, and the appropriate state agency monitors
the development of the relationship. The
agency’s prime concern is the ability of the
adoptive parents to properly care for the child.
If the relationship is working well for all concerned
parties, the state agency will request
that the court issue a permanent decree of
adoption.
If the relationship is unsatisfactory, the child
is either returned to his or her previous home or
is taken care of by the state.
Decree An adoption decree is a judgment of
the court and is given the same force and effect
as any other judgment.
Birth Certificate Following the adoption
proceedings, a certificate of adoption is issued
for the adopted child, to replace the birth certificate.
It lists the new family name, the date
and place of the child’s birth, and the ages of
the adoptive parents at the time the child was
born.
Generally, the certificate of adoption does
not indicate the names of the child’s natural parents
or the date and place of adoption. A child
may never know that he or she was adopted
unless the adoptive parents reveal the information,
since the old birth certificate is sealed away
and may be opened only by court order.
Right to Information on Natural Parents
Ordinarily, all information concerning an
adopted child’s origins is sealed, in compliance
with the court adoption proceedings, to facilitate
development of a relationship between the
adoptive parents and child free from the natural
parents’ influence.
Most state statutes deny adoptees access to
records that disclose information about the natural
parents. Often, the natural parents make
their consent to the adoption contingent upon
the condition that no information about them
should ever be revealed.
In recent times, because of a growing public
interest in tracing ethnic and family backgrounds,
many adoptees, as adults, have been
calling for the right to obtain access to sealed
adoption records.
The adult adoptees recognize that a disclosure
of this kind of information could be traumatic
to minor adoptees, but they contend that
lack of access could cause serious psychological
trauma to them as adults. In addition, they cite
medical problems or misdiagnoses that could be
caused by absence of genetic history, lack of religious
identity, and fear of unwitting INCEST.
Adult adoptees contend that most adoption
statutes do not make a distinction between
adoptees as minors and later as adults, which
causes the adults to be deprived of the right to
trace their background. In addition, the adults
allege that they have been denied EQUAL PROTECTION
of law because their status precludes
them from receiving medical information readily
available to nonadoptees.
Various approaches are being used to resolve
this problem. One approach involves the enactment
of a legislative requirement that public and
private adoption agencies be required to open
their records upon request to adults who were
adopted as children, with certain limitations.
For example, if the child had been placed by the
natural parents prior to the effective date of the
legislation, the natural parents could prevent the
adoptee from seeing the records.
The issue of right to access to adoption
records by adoptees when they reach adulthood
also encompasses the legal consideration of the
natural parents’ right to privacy, which could be
violated if free access to sealed court records
were given to adult adoptees. The adult
adoptees’ right to know must be balanced
against their natural parents’ right to privacy.
The way to achieve such a balance, however, has
never been clearly determined.
In September, 1999, Tennessee’s Supreme
Court overturned the Tennessee Court of
Appeals ruling in Doe v. Sundquist, 2 S.W.3d 919
(Tenn., Sep 27, 1999) (NO. 01-S-01-9901-
CV00006), which challenged a law passed in
1995 that unsealed both adoption records and
original birth certificates to adult adoptees. Earlier,
the 6th Circuit Court of Appeals had ruled
in favor of the state and opined,much to the dismay
of sealed records advocates: “A birth is
simultaneously an intimate occasion and a public
event—the government has long kept records
of when, where, and by whom babies are born.
Such records have myriad purposes, such as furthering
the interest of children in knowing the
circumstances of their birth,” Doe v. Sundquist,
106 F.3d 702, 65 USLW 2527, 1997 Fed.App.
0051P (6th Cir.(Tenn.) Feb 11, 1997) (NO. 96-
6197). The U.S. Supreme Court, however,
elected not to hear the Tennessee case.
FURTHER READINGS
Carp, E. Wayne, ed. 2002. Adoption in America: Historical
Perspectives. Ann Arbor: Univ. of Michigan Press.
DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.:
Messner.
Marshner, Connaught, ed. 1999. Adoption Factbook III.
Washington, D.C.: National Council for Adoption.
Melosh, Barbara. 2002. Strangers and Kin: The American Way
of Adoption. Cambridge, Mass.: Harvard Univ. Press.
Rundberg, Gayle D. 1988. How to Get Babies through Private
Adoption. Bend, Ore.: Maverick.
Sloan, Irving J. 1988. The Law of Adoption and Surrogate
Parenting. London: Oceana.
CROSS-REFERENCES
Child Custody; Child Support; Children’s Rights; Family
Law; Illegitimacy; Infants; Parent and Child; Surrogate
Motherhood.
State of Michigan Petition for Adoption
STATE OF MICHIGAN PETITION FOR ADOPTION FILE NO.
JUDICIAL CIRCUIT–FAMILY DIVISION ❑ Step-Parent
COUNTY ❑ Related Within 5th Degree
❑ Other (Excluding Direct Adoption)
In the matter of ,adoptee
❑ I, , join with my spouse in this petition for adoption (applicable to step-parent adoption only)
Approved, SCAO
Each adopting petitioner states:
❑ 1. An action within the jurisdiction of the family division of circuit court involving the family or family members of the minor has been
previously filed in Court, Case Number , was
assigned to Judge , and ❑ remains ❑ is no longer pending.
2. I desire to adopt
3. The adoptee will be my heir at law.
4. The adoptee’s name will
5. The adoptee’s property is
6. The adoptee’s parents are:
❑ unknown because the rights of the parents have been terminated by a court of competent jurisdiction and parental rights are vested in
Adopting
Mother Maiden:
Adopting
Father
Name and Social Security Number Address, City, State, Zip
Relationship
to Adoptee
Date and Place
of Birth
Full name of child
Full name of child
First Middle Last
Father’s name Birth date Mother’s name (and maiden name) Birth date
Address Address
City, state, zip
Name and address of court or agency
City, state, zip
City, county, and state of birth
Present residential address (if known)
Birth date and time
Name
❑ not be changed.
❑ be changed to.
(PLEASE SEE OTHER SIDE)
Do not write below this line– For court use only
PCA 301 (9/97) PETITION FOR ADOPTION
MCL 710.24; MSA 27.3178(555.24), MCL 710.26; MSA 27.3178(555.26),
MCL 710.45; MSA 27.3178(555.45), MCL 710.46; MSA 27.3178(555.46),
MCL 710.52; MSA 27.3178(555.52), MCL 710.56; MSA 27.3178(555.56)
State of Michigan Petition for Adoption
❑ 7. The adoptee’s court appointed guardian and/or conservator is (attach copy of letters of authority):
❑ 8. The adoptee has been living in the home of and with the petitioners for months before the filing of this petition.
❑ 10. I have been unable to obtain the required consent to adopt the child from the court, Michigan Family Independence Agency, or child
placing agency having permanent custody or from the persons to whom the child was released. A motion alleging that the decision
to withhold consent was arbitrary and capricious is attached.
❑ 12. The adoption be completed immediately because:
❑ 13. The court to waive the required investigation because the adoptee has been placed in foster care with me for at least 12 months and
a foster family study was completed or updated within the last 12 months.
I declare that this petition has been examined by me and that its contents are true to the best of my information, knowledge, and belief.
❑ 15. The full investigation is waived. The petitioner(s) shall file a copy of the most recent foster family study as updated and
supplemented.
11. Termination of all existing parental rights inconsistent with the order of adoption, entry of an order approving placement of the child
with me, and entry of an order of adoption with the adoptee’s name recorded as
I REQUEST:
14.
is directed to fully investigate and report its findings in writing to this court, within 3 months of this order, in accordance with the
provisions of section 46 of the Michigan Adoption Code.
IT IS ORDERED:
❑ 9. (applies only to step-parent adoptions) The noncustodial parent has failed to provide support or comply with a support order and failed
to visit or contact the adoptee for a period of 2 years or more. (Attach form PCA 302, Supplemental Petition and Affidavit to Terminate Parental
Rights of Non-Custodial Parent)
Name Address
Attorney/Agency signature
Court agent or employee, child placing agency, or Michigan Family Independence Agency
Date
AttorneyAgency name (type or print) Bar no. Signature of petitioner mother
Address Signature of petitioner father
City, state, zip Telephone no. Petitioner telephone no.
Date Judge Bar no.
