Birth Parent Rights
If you are a parent considering making an adoption plan for your child, it is important for you to understand your rights and responsibilities as you begin the adoption process. Adoption laws vary from state to state, so all birth parents should speak with an attorney in order to understand how the adoption process will work. Here are answers to some of the most common questions:
What type of adoption will this be? There are basically two types of adoptions: agency adoptions and independent adoptions.
In an independent adoption, the birth parent or parents select the adoptive parents directly, versus through an adoption agency (or they are connected through friends or relatives or by other networking means). Then the birth parent(s) give legal and physical custody of the child directly to the adoptive parents. Typically the attorneys for the birth parents and the adoptive parents will manage the process. The services of an adoption agency are still used in an independent adoption to conduct a home study on the adoptive family and to provide counseling services to the birth parent(s).
On the other hand, in an agency adoption, the agency manages the entire process and the birth parent or parents give legal and physical custody to the agency. In other words, the birth parents relinquish or entrust the child to the agency. The agency then typically gives temporary physical custody to the adoptive parents. However, the agency will keep legal custody for several months and monitor the adoptive family before the agency then consents to the adoption. Even with an agency adoption, the birth parent or parents still usually choose the adoptive parents, but they do so from a list of waiting prospective adoptive parents. A birth parent may also choose to have the agency select the adoptive family.
Most states allow both types of adoptions, but a few states allow only agency adoptions.
How are the adoptive parents selected? If the birth parent chooses to contact an agency, then the agency will show profiles of their waiting families to the birth parents. However, there are a variety of other ways to view adoptive parent profiles. Many adoption attorneys have adoptive parent profiles for consideration. There also are quite a number of websites where prospective adoptive families can feature their profiles and be chosen directly by a birth parent. Birth parents may also find adoptive families by other means including through social media, family, friends, churches, colleagues, and even through newspaper ads.
What laws will govern the adoption? This is a question that should be answered early in the adoption process, so that a birth parent understands if he or she will be proceeding under the laws of their own state or the state where the adoptive parents live. Generally, a birth parent has the right to proceed under the laws of his or her own state, but may waive that right. Some birth parents may choose to waive their own state law because they prefer some of the procedures and protections afforded by the law of another state. For example, the other state may allow for signing an out-of-court consent rather than going to court to consent, or may allow for the payment of living expenses, or may provide for enforceable post-adoption contact agreements (PACAs), among other things. Attorneys in all possible states should be consulted so that the birth parents can understand which state’s laws best suit their needs and choose accordingly. In some cases, the applicable state law may not be optional.
Whose consent is required, and how will it be executed? Prior to making an adoption plan, a birth parent needs to understand whose consent will be required in order for the adoption to successfully take place. In most cases, one biological or legal parent cannot unilaterally make an adoption plan for his or her child without considering how the rights of the other biological or legal parent will be addressed. In addition, state laws vary regarding how a consent (or entrustment or relinquishment) actually takes place. In some cases, one or both parents must go to court and consent before a judge; in other cases, a parent may be able to consent out of court before an attorney or social worker or notary. Birth fathers in many states can execute a consent or waiver or denial of paternity prior to a child’s birth, but no state currently allows a birth mother to give her consent until after a child is born.
How long does a birth parent have to change their mind? Any birth parent may change his or her mind at any time before signing a consent (or entrustment or relinquishment), and in some cases, may be able change their mind even after signing the document. Revocation periods are often a primary concern for both birth parents and adoptive parents. A “revocation period” refers to the amount of time that a birth parent has to take back or “revoke” a consent after signing it. Some consents are irrevocable upon signing – that means there is no revocation period. Other consents may be revoked simply by providing written notice of the revocation within a certain statutory period of time. Yet other consents may be revoked but only when certain conditions are met. Since the laws vary so greatly from state to state, it is important for a birth parent to speak to an attorney and understand what revocation rights are available before he or she signs a consent.
Can a birth parent receive counseling? Yes, every state has licensed adoption agencies and social workers who can provide counseling and services to birth parents, both before an adoptive placement takes place and after a consent has been signed. Counseling is not always required, but it can be an important tool to help birth parents fully understand and think through the decision to place a child for adoption. Counseling also may help birth parents and adoptive parents work through issues such as the hospital plan, living expense assistance, and post-adoption communication and contact.
Can the adoptive parents help me with my living expenses while I am pregnant? Most states allow for some living expense assistance for the birth mother, although in many cases certain requirements must be met. For example, some states require a judge’s approval and other states may limit the amounts allowed. Under no circumstances, however, should anyone be offering money to a birth parent in exchange for his or her consent to the adoption. It is important for all parties to consult with their attorneys before any living expenses are paid, so that any payments or reimbursements are made fully in accordance with the law. The unlawful payment of expenses may jeopardize the adoption.
Should the birth parents have a lawyer of their own? Birth parents have a right to a lawyer during a termination of parental rights and adoption case. If they cannot afford one on their own, it is customary for the prospective adoptive parents to pay the fees of that attorney as part of the adoption expenses. The adoption agency should be able to help a birth parent find an experienced adoption attorney. A birth parent can also search the AAAA Attorney Directory.
Can the birth parents see the baby in the hospital? Yes, birth parents have a right to make a hospital plan and choose to either see, or not see, the child to be placed. It is often helpful for the parties or the attorneys to reach out to the hospital before a baby is due, so that the staff can make sure that a birth parent’s hospital plan is followed as closely as possible.
What happens after the adoption? Can I still get updates on the child? Can I visit? Open adoptions are becoming more and more commonplace, and as a result, the majority of states have developed laws that make post-adoption contact agreements (PACAs) enforceable in court. In those cases, the birth parents and the adoptive parents may agree to a level of post-adoption contact with which they are comfortable (ranging from occasional updates by mail, email, text, or Facebook, to actual in-person visits). In these states, the birth parents have the right to go to court to enforce those agreements even after the court has terminated their parental rights and the adoption has been finalized. Even in the states where post-adoption contact agreements are not enforceable in court, the parties often still agree to informal open arrangements in good faith. In all cases, however, these agreements are always dependent on what is in the best interests of the child.