Adoption Self Help Manual
Chapter 2
What is an Adoption?
Everybody thinks they know the answer to this question. You think to yourself, "I know. An adoption is where a woman has a baby she doesn't want (or can't take care of), so she decides to give her baby to someone like me who can't have a baby of my own."
Well, that's partly true. But there is much more to it than that. An adoption is, more than anything else, a legal process where the permanent upbringing (custody) and lifelong responsibility of a child is transferred from the child's biological parents to the child's adoptive parents.
You will truly get started on the right foot if you understand that the baby is "on loan" to you until everybody's legal rights are in order.
Your may have grown up thinking "finders keepers - losers weepers." Or, "possession is nine-tenths of the law." This is not true in adoptions.
In every situation, the rights of the biological parents must be terminated, surrendered, or relinquished, according to the laws where the birth parents live. Once their rights are terminated, the child is, for the moment, "parentless" --an orphan. You cannot adopt a child who has parents!
What Happens to the "Orphan"?
In some situations, the adoptable child waits with the adoptive family until the birth mother's and birth father's rights are terminated.
It is only after the biological parents' rights have been terminated, that the adopting parents may ask the court to grant them permission to adopt the child.
There is usually a waiting period of several hours, days, weeks or months before the birth parents' rights are terminated. And then there is usually another delay of several weeks to several months before the final adoption decree can be issued by the court.
Once the final decree has been issued, the child is a legal member of the adopting family. Nothing will change this unless the courts later discover fraud, duress, or other legal irregularity or misinformation relating to termination and/or adoptive procedures.
Termination is the Key
In all situations, the legal decision of a biological parent to allow the child to be adopted can only be made after the baby is actually born. That means that terminating rights to the child, either the mother's or the father's, can only be made after the baby is born.
Every adoption requires the termination of the rights of the birth mother. Most also require the termination of the rights of the birth father, too.
There are two ways to effect termination: voluntary and involuntary.
Note that terminology differs from state to state. Some states refer to termination, some refer to the surrender of parental rights, and others to the relinquishment of parental rights. The final outcome will be the same – the ending of all parental rights to the child.
In a voluntary termination, the birth mother and birth father give their written and oral consent to the court. They state that they want to end their parental rights and have the adoption proceed.
An involuntary termination takes place whenever the birth mother or birth father do not give their consent, but do not oppose the adoption process. Please be sure you understand there is a difference between not signing or not orally agreeing to allow an adoption and actually opposing the adoption. If a birth parent actively opposes the adoption – stop! You may have an insurmountable problem.
Can She Change Her Mind?
Even though the birth mother told you earlier in her pregnancy that she wanted to place her baby for adoption, she can change her mind. If her rights have not been legally terminated, and she decides she wants to keep the baby, the courts will not take the baby from her. It is her baby and she can have it back.
Whether you have the baby in your arms or not, whether you have paid any of the bills or not, whether you have been working with this birth mother for one week or the whole nine months, even if you've had the baby in your home for months, if the biological mother's rights have not been terminated, you simply do not have any right to adopt the child.
While it varies from state to state, the same generally holds true for the birth father as well. If he has not had his rights legally terminated, voluntarily or involuntarily, he can indicate he wants the baby. You will have a real struggle on your hands if this is the case.
Generally, the biological parents cannot be forced to place their child for adoption unless they are found unfit. This is a very hard course for you to pursue. Better to avoid such legal hassles. Be certain everybody's rights have been taken care of.
Who is Going to be Told What: Open and Closed Adoptions
You have probably heard that in some adoptions, the adopting parents know nothing about the birth parents and vice versa. This is known as a closed adoption. While information about each person may be shared with the other, specific identifying information such as name, address and phone numbers are not revealed.
The opposite arrangement is also possible. This is known as an open adoption. The biological and adopting parents exchange last names and identifying information.
For families who are not willing to do an open adoption, there is also semi-closed or semi-open adoption, which is a blend of the two options. The issue is not whether the birth parent gets pictures and updates, writes to you through an intermediary or even gets to see the child. The difference between open and closed adoption is whether your identity is released to the birth parents and vice versa.
There are advantages and disadvantages to you and the birth parents in both open and closed adoptions.
In an open adoption, for example, the birth mother can have a true sense of being involved with her child. It relieves her of feeling that she abandoned her child. The open arrangement also allows her to deal with her fears concerning the adopting family: What will they be like? Will they take good care of her child? Will I be able to contact them in the future?
In an open adoption, if visitations take place, the child may benefit from having the love of two separate sets of "parents." As the baby grows older, he or she will not feel abandoned or rejected by the birth mother. Even if visitations don't occur, as the child gets older and wants to find and/or meet the biological parents, an open adoption makes this easy to accomplish.
On the other hand, open adoptions present unique difficulties. For example, suppose you are in conflict with the birth mother over discipline or education of the child. What then? Some specialists suggest that having two sets of "parents" causes conflict and confusion for the child. Which set of parents does the child relate to?
Suppose the birth mother does not really want to relinquish her rights to the child. What if she sees an open adoption as a way for her to have her cake and eat it too? She may be intrusive on you and your family. Your loss of privacy can be extreme.
Obviously, there are additional issues you must ponder. Don't take any of this lightly. You are planning to spend the rest of your life with this child. That is a great responsibility.
This discussion may be meaningless, however, because not all states permit both open and closed adoptions.
Rest assured, however, that within the framework of a closed adoption, you can probably exchange as much information as you would wish – excluding information which would allow either the biological parents or the adopting parents to identify or contact one another directly. This can be handled by an intermediary. You can custom-design the arrangements so that they are completely in accordance with your wishes and beliefs and the laws of the states involved.
Whether an adoption is open, closed, or some blend of the two will depend on what you want, what the birth parents want, and what your state allows. Some states require an adoption to be open and all identifies disclosed. Others will give you a choice. As with other issues, you will need to know what the laws of the state are in regards to whether an adoption is open or closed and whether it can be conditional or unconditional.
An unconditional adoption means that there can be no conditions placed on the adoption including providing pictures or visits with the child after the parental rights are terminated. If your state allows conditional adoptions, plans such as providing pictures, visitation, etc. may be legally enforceable. If you work with an agency, the agency should know this information.
Later in this manual you will learn of the different kinds of adoptions permitted under the law. The purpose of this chapter, however, is to give you a better overview of what the entire process is all about. By now, you should have a better grasp on why there is so much emphasis and importance on knowing and understanding the law. And why you need to be concerned with everyone's rights.