I love the show Modern Family. If you have a family you should watch it. They do such a good job at capturing all of the little things that happen between people who love each other and sometimes want to strangle each other. That, and you don’t go an episode without explosive laughter more than once. The reason that I mention this is because when I went to type in the title of this week’s post I remembered a scene from the show. For those of you who have not yet experienced the hilarity, one of the families involved is a gay couple who adopted a little girl from Vietnam. Mitch is the traditional “male” role who is a lawyer and brings home the bacon. Cam is a big guy who you just want to hug (and who used to be a football player) and who is the “stay at home mom.” He hears on Oprah about a girl who found out she was adopted when she was a teenager and had a bad reaction. So he wants to make sure that Lily, their daughter, knows that adoption is a good thing. So every time anyone says the word “adopt” he goes “YAY!!!” and claps his hands, and then goes back to normal conversation. He is hoping to make a positive connection for Lily. By the end of the show they say “adopt” and Lily claps her hands.
Adoption really is one of the happiest things that can happen to your family. I think that it is equal to having a new baby. You are giving a home to a child who needs one, or you are solidifying your family by making the step parent a full parent. Anytime you make or grow a family it is such a happy occasion. As a lawyer, I don’t get to help with very many happy occasions, so I am always ecstatic to be able to assist with adoptions.
There are many different forms of adoptions and each requires different legal methods to ensure that they are done properly. Some examples include: (1) adoption of an unrelated child through a system (like social services or an adoption agency), (2) adoption of an unrelated child not through a system (so a friend or someone you know), (3) adoption of a related child (for example: a grand parent adoption) through a system or not, (4) adoption of a foreign child (always through an agency), (5) adoption of step children, or (6) adult adoption.
Because there are so many different aspects to these issues I am going to address them individually over time. This episode features the kind of adoption that is most sought after: the newborn adoption.
There are many ways of families connecting in order to complete an adoption. Sometimes a mother knows that she does not want to keep the child, but personally knows someone who wants a child. In that case they do not need to go through an agency to find a home for the baby. Often, though, prospective families and mothers will go through an agency to find each other. If that is the case, the agency will do all of the paperwork for you.
The most important aspect of adoption is ensuring that the biological parent(s) of the child have terminated their parental rights either by choice or by state action. Every parent has the constitutional right the the “care and custody” of their child. This means that unless the parent shows a complete lack of ability to care for the child, or the parent signs away their rights voluntarily, then the parent gets to keep rights to their children. If you are adopting a child from the state social services system the parent’s rights have already been terminated (or, if you are fostering to adopt, they are in the process of being terminated.)
Once the biological parent(s) has decided that she wants to go through adoption she needs to know what process will happen to transfer the child from her to the new parents. There are very different procedures for each method (whether you go through an agency or you don’t), and you need to make sure that you are following the correct rules. If you choose to go through the state or an adoption agency then you can get an expedited process. If you are doing it without an agency then you need to make sure that you know the steps and that everything is done correctly. It will take longer, but it could be less expensive. If you are not going through an agency I strongly recommend that you use an attorney. If you do not do every step properly and then five years later the mother changes her mind, you could be stuck in a very long legal battle.
If you choose not to use an agency then you will have to do several things. The mother will have to attend adoption counseling that is approved by the courts. During this counseling she will learn about her options outside of giving up the baby, and how the community and the state can help support her if she keeps the child. She will also learn how permanent her decision is and the long term effects on her and the child. If she decides after learning all of these things that she still wants to give up the child then the counselor will sign a paper for the courts saying that she knows what she is doing. The mother will then also have to sign an affidavit that says that she has learned many specific things and she still wants to give up the baby.
In Colorado a mother can surrender her child at birth, or even before, either to the state, an adoption agency, or another person for adoption. If the mother and the prospective adoptive parents are going through an agency then they can get an expedited process through the courts. With the proper affidavits, counseling, and preparation before the birth of the baby they can have the adoption done in about two weeks after the baby is born. The birth mother can even sign the affidavit stating that she wishes to surrender the child before the child is born, and then the agency will complete the required paperwork as soon as they can.
There is a safeguard, though, to ensure that the mother is not bound to surrender her child after it is born if she doesn’t want to. Imagine that you are a young girl who thinks she wants to give away the baby. But then she has the baby and in the rush of actually seeing the little one decides that she does want to try to make it work. Because of that situation the law states that the agency or potential adoptive parents cannot file the petition for adoption until four days after the baby is born. This gives the mother the chance to decide whether she wants to keep the baby after she has had the chance to see it.
But lets not forget about fathers here. Our culture often overlooks the important roll that fathers play in children’s lives. Fathers are not supposed to want to keep the baby if the mother does not want to. But many good men may decide that they want to raise their child if the mother is not able, or willing, to do so. For this reason there are requirements of notice to the father. If the mother knows who the father is she must tell the agency or prospective adoptive parents. They must then notify the father of the prospect of the child being adopted and give him the chance to step up. If he chooses not to take the child, then his rights have been terminated. There are many other scenarios that may happen with giving notice to the father, and your situation may be unique. Always consult with a lawyer if you are unsure of what should happen with the father of a prospective adoptive newborn.
Adoption is such a happy process, even if it can be bittersweet. If you are considering an adoption make sure that you consult with an attorney or with a licensed adoptions facility to make sure you are doing everything correctly. I wish you the best in this journey.
Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice. If you have a question you should consult with a lawyer. Meggin is certified to practice law only in the state of Colorado. Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state. If you live in another state you should consult with a lawyer near you. This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract. If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .