1. Chapter 14:
Adoption
12
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester
2. LEARNING OBJECTIVES
After this lecture, you should be able to:
14.1 Explain what adoption is and the purposes it
12
serves.
14.2 Identify various types of adoption.
Distinguish between an open and a closed
14.3 adoption.
Class Name
Instructor Name
Date, Semester
Cont.
3. LEARNING OBJECTIVES
After this lecture, you should be able to:
14.4 List the major steps in the adoption process.
12
Discuss the rights of wed and unwed biological
14.5 parents in the adoption process.
Explain what a putative father registry is and the
14.6 purposes it serves.
Class Name
Instructor Name
Date, Semester
Cont.
4. LEARNING OBJECTIVES
After this lecture, you should be able to:
14.7 Identify circumstances in which parental rights
12
may be terminated.
Identify who must consent to an adoption and
14.8 what the characteristics of an effective consent
are.
14.9 Explain what a safe haven law is.
Class Name
Instructor Name
Date, Semester
Cont.
5. LEARNING OBJECTIVES
After this lecture, you should be able to:
14.10 Explain when an adoption may be challenged
12
and by whom.
Describe the role of the paralegal in an adoption
14.11 case.
Class Name
Instructor Name
Date, Semester
6. Learning Objective
After this lecture, you should be able to:
14.1
Explain what adoption is and
the purposes it serves.
7. What is adoption and what
14.1 purposes does it serve?
• Adoption is the judicial process by which a new parent-
child relationship is created and an adoptive parent
assumes the legal rights and duties of a biological parent.
• It is essentially a two-step process in which an existing
parent-child relationship (usually between a child and
one or both of his or her birth parents) is terminated and a
new relationship is judicially created, in effect, a birth by
legal process.
• An adoptive parent may be a stranger to the child, a
relative, a step-parent, or a known but unrelated adult as
is usually the case in an adult adoption.
• The adoption may and, in some states, must be
coordinated by a state-approved public or private
agency, and in the ART context may be facilitated by a
contractual agreement enforceable in the courts.
7
8. What purposes does adoption
14.1 serve?
• Adoption has existed for centuries. It initially served to
meet the needs of adults wishing to maintain political
power, and ensure heirs and the orderly transfer of
wealth. Today its primary purpose is to protect children
and ensure their futures within the context of a family unit.
• Once finalized, the relationship between the adoptee
and adoptive parent is as permanent as the relationship
between a child and a biological parent and it does not
end with a parent’s death or divorce. It can only be
terminated by court order.
• Adoption brings to the child a wide range of benefits
including, for example, the right to be supported while a
minor, the right to inherit by and through the adoptive
parents, the right to receive worker’s compensation
benefits for dependents, and the right to bring a wrongful
death action on the death of an adoptive parent.
8
10. What are the five major types of
14.2 adoption?
• Agency adoption: an adoption facilitated by an agency
licensed by the state that is essentially responsible for all
phases of the adoption process
• All states permit agency adoptions and many require that
an agency facilitate the adoption except in the case of a
step-parent or close family member.
• Independent adoption: sometimes called private,
designated or identified adoption, an independent
adoption is usually facilitated by a third party such as a
physician or an attorney, rather than by a licensed state
agency but it still must be approved by a court
• A majority of states permit independent adoptions but
some do not because of concern that they are not as
carefully regulated or screened as agency adoptions.
10
11. What are the five major types of
14.2 adoption? (continued)
• International adoption: an adoption in which a child residing in
one country is adopted by a resident of another country
• This is a highly specialized area of practice in which careful
attention must be given to complying with the laws governing
adoption in both countries including immigration laws. (See
Paralegal Application 14.1 Do You Want to Learn More About
International Adoption? on pages 488-489.)
• Equitable adoption/adoption by estoppel: refers to a situation
in which prospective adoptive parents accept a child into their
home and raise the child as their own without ever finalizing the
formal adoption process
• The courts in some states will treat this situation as if the
adoption actually took place especially when adoptive
parents die without a will and an effort is made to deny the
child’s inheritance claim.
11
12. What are the five major types of
14.2 adoption? (continued)
• Illegal/black market adoption: an adoption
brokered by an individual who collects a substantial
fee for locating a child who is transferred from one
person or couple to another without formal legal
process
• “Baby selling” is prohibited in all states and such
“adoptions are likely to be considered void if
challenged at a later date.
12
13. Learning Objective
After this lecture, you should be able to:
14.3
Distinguish between an open
and a closed adoption.
14. What is the difference between an
14.3 open and a closed adoption?
• Closed adoption: The traditional model, a closed adoption is an
adoption in which biological and adoptive parents essentially
know nothing about each other, and adoptees have no access
to their original birth certificates or identifying information about
their biological parents. The general rule is that once an
adoption is finalized, a new birth certificate is issued and an
effort is made to protect the privacy of the birth parents and the
security of the new adoptive family unit.
• Open adoption: An open adoption is an adoption in which
biological parents, adoptive parents, and adoptees have
varying degrees of contact with each other.
• Increasingly states are providing for the release of information
to adoptees under special circumstances (such as medical
emergencies) and/or when the adoptee reaches the age of
majority (usually 18).
14
16. What are the major steps in the
14.4 adoption process?
• Adoption is a creation of statute and is subject to
governing state and federal laws. Each state has
enacted its own procedures and practices which
vary considerably from state to state.
• The steps are carried out by several individuals
whose roles and relationships vary depending on
governing law and the facts of each case:
biological parents, adoptive parents, attorneys,
agency personnel, third-party facilitators, and the
courts.
16
17. What are the major steps in the
14.4 adoption process? (continued)
• The basic process in virtually all states includes the following:
– Determine the rights of the biological/legal parents
– Terminate the rights of the biological/legal parents by consent or involuntary
termination
– Identify potential adoptive parents and adoptees
– Conduct home studies (See Exhibit 14.1 on page 510 of the text.)
– Determine proper jurisdiction and venue
– File petition for adoption (See Exhibit 14.12 on pages 512-514 of the text.)
– Serve notice on all interested parties
– Conduct a preliminary hearing
– Issue an interlocutory decree granting temporary custody to the adoptive
parents
– Arrange preadoption placement with the adoptive parents
– Issue final decree
– Consider challenges to the decree, if any
17
18. Learning Objective
After this lecture, you should be able to:
Discuss the rights of wed and
14.5 unwed biological parents in
the adoption process.
19. What are the rights of biological
14.5 parents in the adoption process?
• The biological mother: Her rights are essentially
established at birth. She can choose to place her child
and consent to adoption or her rights may be terminated
by clear and convincing evidence.
• The married father: Under the marital presumption, if no
other father has been legally established, the married
father’s parental rights must be surrendered or terminated
for the adoption to move forward.
• The father whose identity or whereabouts are unknown: A
diligent search must be made to identify and locate the
father and proof of the effort may be required by the
court. A failure to conduct a proper search can result in a
later challenge to the adoption on the grounds the father
did not receive proper notice.
19
20. What are the rights of biological parents in
14.5 the adoption process? (continued)
• The nonmarital biological father: Under common law, the
unmarried father had no rights to intervene in an action to
adopt his child. His rights in the contemporary adoption context
are shaped by a series of U.S. Supreme Court cases.
• The Court has established that fathers of nonmarital children
have constitutionally protected rights under the Equal
Protection Clause and a privacy interest in the children they
have sired such that their rights cannot be terminated without
notice and an opportunity to be heard.
• But their rights are neither automatic nor unlimited. Under the
biology-plus rule, an unwed father’s rights are entitled to
constitutional protection only if the father grasps the
opportunity to develop a relationship with and accept
responsibility for his child.
• The extent of demonstrated commitment that must be shown
by the unmarried father varies by state.
20
21. Learning Objective
After this lecture, you should be able to:
Explain what a putative father
14.6 registry is and the purposes it
serves.
22. What is a putative father registry and
14.6 what purposes does it serve?
• A putative father is a man who is believed to be (or
believes himself to be) the father of a child but who was
not married to the mother when the child was born and
whose paternity has not yet been established by legal
process.
• A putative father registry is a vehicle available in one
form or another in a majority of states that is designed to
protect a putative father’s parental rights by giving him
notice of a pending adoption proceeding without his
having to rely on the birth mother or prospective adoptive
parents for such information.
• When a putative father registers, he is registering his intent
to assert his rights and responsibilities as a parent. If he
registers within a specified time period, he will be given
notice of a proposed adoption of his child and petition for
termination of his parental rights.
22
23. Learning Objective
After this lecture, you should be able to:
Identify circumstances in
which parental rights may be
terminated.
24. Under what circumstances can a legal
14.7 parent’s rights be terminated?
• Prior to the 1960s, public policy favored preservation
of the biological family as a priority and reunification
of the family if a child was removed from the home
temporarily and placed in the care of the state for
some reason.
• Today under federal and state law, the focus is on
permanency planning for the thousands of children
in state care who have lost their parents due to
death, abandonment, incarceration, and/or abuse
and neglect. Permanency planning is designed to
move children as soon as possible into healthy,
stable, and permanent homes.
24
25. 14.7 Under what circumstances can a legal parent’s
rights be terminated? (continued)
• For an adoption to proceed, in most cases, the biological parents’
rights must be extinguished through voluntary consent or
involuntary termination. This is usually accomplished in one of four
ways.
• The parents voluntarily surrender their rights and th
e court transfers custody of the child to an agency which places
the child in foster care or some other residential setting pending
adoption.
• The biological/legal parents consent to the adoption directly and
their consents are filed with the petition for adoption.
• The biological/legal parents’ rights are terminated by the court for
cause and the state is granted custody of the child pending an
adoption.
• One of the parents, a third party, or a prospective adoptive parent
asks the court to dispense with parental consent and release the
child for adoption given the circumstances of the case.
25
26. Under what circumstances can a legal
14.7 parent’s rights be terminated? (continued)
• Because they are constitutionally protected, parental
rights generally cannot be terminated without notice and
an opportunity to be heard in a termination proceeding.
• Although there is no constitutional right to an attorney in a
termination proceeding, most states establish such a
right.
• The states generally establish by statute, administrative
regulation, and/or case law the circumstances in which
termination can occur given clear and convincing
evidence of parental unfitness and the best interests of
the child.
• Parental rights cannot be terminated simply because
parents are poor, exercise weak parental judgment, are
messy housekeepers, drink, or are strict or lax in
discipline.
26
27. 14.7 Under what circumstances can a legal parent’s
rights be terminated? (continued)
• Examples of circumstances in which parental rights
may be terminated include the following:
– They are incarcerated for serious crimes against children.
– They abandon their children for a prolonged period.
– They fail to support their children for an extended period of
time depriving them of the necessaries of life (food, clothing,
shelter, etc.) although nonsupport alone may not be enough.
– They place the child in an unsafe environment by engaging in
high risk and/or illegal behaviors in the presence of the child
such as prostitution and sales of drugs and weapons.
– The fail to participate in a court-ordered family-reunification
plan.
27
28. Learning Objective
After this lecture, you should be able to:
Identify who must consent to
14.8
an adoption and what the
characteristics of an effective
consent are.
29. Who must consent to an
14.8 adoption?
• Each state establishes by statute or administrative
regulation the requirements governing consent to
the kinds of adoptions permitted in the jurisdiction:
who must consent, the form of the consent, when the
consent can be given, and the circumstances under
which the consent can be revoked.
• Consent rules are designed to balance the
constitutionally protected rights of biological/legal
parents and the rights of adoptive parents seeking to
establish a new family unit with confidence.
29
30. Who must consent to an
14.8 adoption? (continued)
• Absent involuntarily termination, the mother’s
consent (or surrender of parental rights) is required
and the father’s consent may be required
depending on the circumstances (Is he married or
unmarried? if unmarried has he made an effort to
establish his rights and responsibilities as a father?)
• In most states, courts will consider the wishes of the
child and, in some states, the adoptee’s consent
may be required if he or she has reached a certain
age (usually 12-14).
• Unlike a typical adoption, in a step-parent adoption,
the cut-off rule does not apply to the parent who
remains in the new family unit.
30
31. What are the characteristics of
14.8 an effective consent?
• The consent must be in an impartially witnessed and
notarized writing that clearly identifies the child and
the parental rights being terminated.
• The consent must be informed: Ideally, the parent
should participate in some form of counseling and
have legal advice with respect to the nature and
effect of the consent.
• The consent is more likely to be deemed valid if the
parent has been given copies of all documents to
be signed in advance, has had sufficient time to
review them and obtain advice, and understands
the documents and the effect of signing.
31
32. What are the characteristics of an
14.8 effective consent? (continued)
• The consent must be free from duress, fraud, and
undue influence.
• The consent must be given according to a time
frame established by statute or regulation. Although
a few states permit pre-birth consents, the majority
specify that consent can only be given after a
certain period following birth (generally three days).
• The general rule is that a consent that is given
voluntarily, knowingly, and intelligently cannot be
revoked absent fraud, duress, or undue influence.
32
34. 14.9 What is a safe haven law?
• A safe haven law is a law that allows a parent or an
agent of a parent, of an unwanted newborn to
anonymously leave the baby at a safe haven
center, such as a hospital emergency room or
police station, without fear of legal charges of
abandonment or child endangerment, etc. as long
as there is no evidence of abuse.
• Adoptions of babies left at safe-havens are at-risk of
being challenged at a later date if a biological
father asserts that he was not given notice of the
birth and the adoption and did not consent to it.
34
35. Learning Objective
After this lecture, you should be able to:
Explain when an adoption
14.10 may be challenged and by
whom.
36. When can an adoption be
14.10 challenged and by whom?
• The general rule is that adoptions are considered
final but occasionally challenges do arise.
• The three most common sources of challenges are
the following:
– Unwed biological fathers who never received notice of their
child’s adoption (See Case 14.1 In re Doe (1994) on pages
515-516.)
– Biological parents who seek to revoke their consents
– Adoptive parents who seek to abrogate an adoption they
believe was wrongfully procured by an agency that failed to
provide them with accurate or sufficient information about the
adoptee prior to the adoption
36
37. Learning Objective
After this lecture, you should be able to:
Describe the role of the
14.11 paralegal in an adoption
case.
38. What is the role of a paralegal
14.11 in an adoption case?
• The paralegal’s role in an adoption case depends on
four primary factors:
– The extent to which the firm where he or she is
employed specializes in adoption
– The type of adoption involved
– The client’s role in the litigation: Is he or she the
petitioner? Is he or she seeking to block the
adoption? Is the client an agency?
– The nature and level of the paralegal’s skills
38
39. What is the role of a paralegal in an
14.11 adoption case? (continued)
• In addition to the tasks customarily performed by
paralegals, the paralegal may be assigned to do the
following in an adoption case:
• Research state and federal statutes, case law, and
procedural rules and regulations governing adoption
in the jurisdiction (including research on issues such
as the rights of nonmarital fathers and co-
parents, effective consents, and involuntary
termination of parental rights)
39
40. What is the role of a paralegal in an
14.11 adoption case? (continued)
• Create websites and marketing strategies for attracting
prospective adoptive parents and parents considering
placing their children for adoption
• Conduct a thorough search for a biological father whose
whereabouts are unknown
• Draft open adoption agreements
• Locate and draft necessary documents such as petitions,
consents, surrenders, etc.
• Draft documents required if the child to be adopted is
Native American
• Draft documents required by ICPC (the Interstate
Compact on the Placement of Children) if the adoption
involves multiple states
40
41. Chapter Summary
14.1 Explain what adoption is and the purposes it
12
serves.
14.2 Identify various types of adoption.
Distinguish between an open and a closed
14.3 adoption.
Class Name
Instructor Name
Date, Semester
Cont.
42. Chapter Summary
14.4 List the major steps in the adoption process.
12
Discuss the rights of wed and unwed biological
14.5 parents in the adoption process.
Explain what a putative father registry is and the
14.6 purposes it serves.
Class Name
Instructor Name
Date, Semester
Cont.
43. Chapter Summary
14.7 Identify circumstances in which parental rights
12
may be terminated.
Identify who must consent to an adoption and
14.8 what the characteristics of an effective consent
are.
14.9 Explain what a safe haven law is.
Class Name
Instructor Name
Date, Semester
Cont.
44. Chapter Summary
14.10 Explain when an adoption may be challenged
12
and by whom.
Describe the role of the paralegal in an adoption
14.11 case.
Class Name
Instructor Name
Date, Semester
