Thousands of newborns are placed each year through private adoption. You'll need an experienced attorney to guide your way.
In a private or independent adoption, prospective adoptive parents are advised by an adoption attorney, instead of working with an adoption agency. This form of adoption is specifically authorized by law in all states except Colorado, Connecticut, Delaware, and Massachusetts. Because adoption is, for the most part, controlled by state law, aspects of independent adoption vary from state to state, and you'll want to engage an experienced adoption attorney who is knowledgeable about the differing requirements. To learn about the adoption policies specific to your state, visit adoptivefamilies.com/adoption-resources.php.
In a typical independent adoption, the prospective parents take an active role in identifying a birthmother, usually by networking, advertising, or by using the Internet.
Another difference between independent and agency adoption is the method by which the birthparents give their consent to adoption. In an agency adoption, the birthparents relinquish their parental rights to an agency, and the agency, in turn, consents to an adoption by specific adoptive parents. In independent adoption, the birthparents give their consent directly to the adoptive parents.
The role of the adoption attorney varies by state. In most cases, your lawyer will handle all the legal documents, negotiate payments to the birthmother, and represent you at the adoption court hearing. Some states also let attorneys help you locate and screen birthmothers. While 46 states allow independent adoption, not all of them permit advertising for birthmothers. A good lawyer will make sure the birthfather's rights are addressed and that you get a homestudy that complies with state requirements. If the adoptive parents and birthparents live in different states, your lawyer should understand the Interstate Compact on the Placement of Children, a uniform law that sets procedures for the transfer of children from one state to another. Finally, a good lawyer will put your interests first. Some states require birthparents to have separate counsel, but even if your state does not, you should have a legal representative who works for you alone. This is also ethical legal practice.
In this country at least as many newborns are placed each year through independent adoption as through agency adoption. While it is difficult to say why birthparents might prefer independent adoption, they do report some reasons consistently, including: a perception that agencies are bureaucratic; a desire to play an active role in selection of the adoptive parents; and a desire for the child to go directly into the physical custody of the adoptive parents rather than into temporary foster care.
From the adoptive parents' perspective, the advantages of independent adoption extend beyond the ability to play an active role in the selection of specific parents. Other benefits include the possibility of avoiding the long waiting periods that may occur with agency adoptions and the ability to adopt even without meeting the sometimes arbitrary standards that may be imposed by agencies.
The “openness" that is characteristic of independent adoption may offer psychological benefits to the birthparents, the adoptive parents, and adopted children. In some states that permit independent adoption, birth- and adoptive parents must have one or more face-to-face meetings.
How it works
All of the services that are traditionally provided to the parties in an agency adoption can also be provided in an independent adoption. For example, medical and social histories are obtained not only by the adoptive parents themselves, but also by the attorney representing the birthparents. The histories are then preserved by the adoptive parents and their attorney. Psychological counseling is also available to the birth- and adoptive parents and is generally recommended by the attorneys handling independent adoptions. Homestudies are required in all states. Your attorney can refer you to qualified homestudy providers and counselors experienced in adoption issues.
In independent adoptions, it is common for the adoptive parents to be present at the hospital, even at the time of birth. In addition, the adoptive parents typically can help care for the child in the hospital. It is also common for the child to be discharged from the hospital directly to the physical care of the adoptive parents.
No state allows a birthparent to give a binding consent to an adoption before the birth of the child. In addition, states mandate various minimum waiting periods after the birth before a consent can be signed. States also have varying laws governing whether or not birthparents are permitted to change their minds for a period of time after giving consent. Some states make the consent immediately irrevocable upon signing; others allow birthparents to revoke consent for a short period, such as 15 to 30 days from the date of signing. Check the Adoptive Families state-by-state listing of this information and requirements at adoptivefamilies.com/adoption-resources.php.
Mark T. McDermott, J.D., is a Washington, D.C., attorney. He is a past president of the American Academy of Adoption Attorneys and an adoptive parent.
For many independent adopters, playing a direct role in locating a birthmother is empowering. These adopters may be motivated by the desire to adopt a newborn, and increasingly, adoptive parents value some degree of contact with their child's birthparents. But there are risks to independent adoption, especially in these three areas:
- It can take a long time to be chosen by a birthmother, particularly if you have special circumstances (by virtue of your age, profession, location, religion, or marital status). While on average adoptive parents complete independent adoptions within 12 to 18 months, some wait years for a baby, or even give up on adoption.
- Even after you find a match, the outcome is not certain until the adoption is finalized. In adoption attorney Steven Kirsh's experience, “About half the birth mothers decide against adoption before the baby is placed and about 20% after the baby is born but before consents are signed." Fewer than 1% of final adoptions are contested, however.
- Costs vary widely (from $10,000 to more than $35,000), depending on many factors families can't control. For example, you may have to advertise longer than you planned, or the birthmother may have medical complications that extend her hospital stay. What you can do: Look for a birthmother who has medical insurance or is living at home. Limit phone chats with your attorney, since that time is typically billed. Steer clear of intermediaries who ask you to pay a “finder's fee," charging you to look for a child and providing no other service, or who charge to place your name on a waiting list. Spread costs out over time by setting up escrow accounts or working out a payment plan with the hospital.
Hiring an adoption attorney
Adoption is a wonderful option for expanding your family, but the laws governing the process can be quite complex. Working with an expert in adoption law will help ensure that your adoption proceeds smoothly. An adoption attorney will:
- Provide an unbiased explanation of adoption methods and resources and help you develop a legally secure plan tailored to your needs;
- Explain your rights and the adoption laws in your state or refer you to adoption attorneys who practice in other states or internationally;
- Assess the risks involved, including 1) determining what costs are legally permissible and 2) ensuring that the birthparents' rights are legally terminated before placement is finalized
- Review and negotiate adoption agency contracts to ensure that your interests are served;
- Clarify your options for post-placement arrangements, if any, with birthparent(s) and draft or review an agreement to ensure that your best interests and those of the child are served
Before you hire an attorney, ask the following questions, and make sure to:
- Contact an attorney as early as possible in the decision-making process.
- Know what the attorney charges and how the fees are structured. Make sure they are affordable.
- Know the specific types of adoptions and services the attorney provides. Ask what percentage of the practice is dedicated to adoption and how many adoption proceedings the attorney has handled.
- Ask for references. Ask lots of questions, share your concerns and provide the attorney with all relevant documents.
- Choose an attorney who is experienced in the type of adoption you are considering. Fact Sheet from the American Academy of Adoption Attorneys, www.adoptionattorneys.org.
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