Adoption Types Explained

STEPPARENT ADOPTION
In a stepparent adoption, the child is living with a legal parent who has remarried, and the new spouse wants to adopt. Most states have special provisions making it relatively easy for a stepparent to adopt, if the child's non-custodial parent agrees, is dead or missing, or has abandoned the child.

AGENCY ADOPTION
Adoptions arranged by licensed charities or publicly-funded social service agencies are called agency adoptions. Agency adoptions involve more court or welfare department involvement than do private adoptions. When a child lives at an orphanage and is adopted, the adoption is usually an agency adoption.

inter-country adoption
When children of another country are adopted by citizens of the United States, the controlling law is the law of the child's country of origin. Normally, the adoptive parents will receive a final decree of adoption granted in the foreign country by the court or other authority which grants such decrees under the foreign country's laws. A few countries have systems which confer legal authority on the adoptive parents to finalize the adoption in the courts or the home country of the adoptive parents.

In either of the above scenarios, the action by the foreign country, which results in making the adoptive parents the legal parents of the child, does not serve to make the child a U.S. citizen. Consequently, a visa must be obtained for the child to enter the United States. In addition, the child must go through the naturalization process in order to become a U.S. Citizen.

COUNTY ADOPTION
A county adoption happens when a county has custody of a child because the parents have abused, neglected or abandoned the child, or the child has been declared beyond the parents' control. These children are usually placed in foster homes while efforts are made to reunite the family. If reunification doesn't occur, the parents' rights are terminated and the child is made available for adoption.

HOW A CHILD BECOMES AVAILABLE FOR AGENCY OR COUNTY ADOPTION
When a parent fails to provide any financial assistance to, and/or communicate with, his child over a period of time, a court may deem the child abandoned by that parent. Abandonment also describes situations where a child is physically abandoned--left on a doorstep, delivered to a hospital or placed in a trash can, for example. These children are usually placed in orphanages or foster homes and made available for adoption.

When a parent or guardian fails to provide a child with adequate necessaries, education, supervision or general guidance, the adult may be guilty of child neglect. If child neglect is suspected, the local welfare department will conduct an investigation. In severe cases, the child will be removed from the home after a court hearing and placed in a foster home. If the parents do not improve their situation within a reasonable time (usually between six months and two years, depending on the state), the child may be taken away permanently and placed for adoption.

INDEPENDENT ADOPTION
An adoption arranged privately between the birth mother and the adoptive parent(s) rather than through a public agency is termed an independent (or private) adoption. A court must approve an independent adoption for it to be valid.

OPEN ADOPTION
An open adoption is an adoption where the birth mother remains in contact with the adoptive parents and the child throughout the child's life. In most adoptions, birth and adoption records are sealed by court order, and the child and adoptive parents may never know the mother's identity. A growing number of families (especially where the adoptive parents are related to the birth mother) are choosing an open adoption route for a number of reasons, including:

* minimizing the birth mother's feelings of guilt and isolation
* reducing the likelihood that the birth mother will rescind the adoption
* having future easy availability to medical histories of the biological parents
* minimizing the trauma to the child in finding out that she was adopted, and
* maximizing the loving adult contacts the child has.

EQUITABLE ADOPTION
In some states, when a close relationship like that of parent and child exists between a child and an unrelated adult, the courts recognize that an equitable adoption has occurred. Often, the adult had agreed or intended to adopt the child but had not validly done so. The effect of calling the relationship an equitable adoption is that the adult must support the child and may be ordered to pay child support if the adult and child no longer live together (as would be the case if the adult and the child's legal parent split up).

PUTATIVE ADOPTION
A putative adoption is another term for an equitable adoption.

CONSTRUCTIVE ADOPTION
A constructive adoption is another term for an equitable adoption.

SINGLE-PARENT ADOPTION
A single-parent adoption is an adoption by one unmarried person.

SECOND-PARENT ADOPTION
A second-parent adoption (also called a co-parent adoption) is an adoption of a child by the unmarried partner of the child's legal parent. Second parent adoptions have been granted to lesbians and gay men who are the partners of the biological parents.

TWO-PARENT ADOPTION
A two-parent adoption is an adoption of a child by an unmarried couple. Like second-parent adoptions, a number of two-parent adoptions have been granted to lesbian and gay couples.

ADULT ADOPTION
The reason why one adult might want to adopt another is to create a legally binding relationship when marriage is not available--for example, if the two people are of the same sex, one is already married to another person or they are related too closely to permit marriage (such as first cousins, in a few states). The relationship created by an adult adoption is that of parent and child.

The obstacles the adoptive parent and adopted adult child face include:

* state laws prohibiting adult adoptions--Alabama, Arizona, Hawaii, Michigan, Nebraska and Ohio prohibit one adult from adopting another
* incest laws, if the adoptive parent and adopted adult child are involved in a sexual relationship
* sodomy laws, if the adoptive parent and child are involved in a same-sex sexual relationship, and
* adoption laws specifying an age difference between the adoptive parent and child.

The struggle states engage in over adult adoptions can be demonstrated by the laws in New York and Delaware. New York's adoption law (Domestic Relations Law Art. VII Section 110) is silent on the issue of adult adoptions. After a few lower courts granted them to gay couples (one partner adopting the other) in the early 1980s, the state's highest court ruled otherwise. It held that the state's adoption law could not be used as a "quasi-matrimonial vehicle" to legally formalize an adult relationship between sexual partners. (Matter of Robert Paul P., 63 N.Y.2d 233 (1984).)

Delaware's adoption law, on the other hand, specifically allows adult adoptions. (Delaware Code Section 13-951.) In a case in which one gay partner sought to adopt his lover, the lower court denied the adoption saying that an adoption must be between two people with a "parent-child" relationship, even if they are both adults. The Supreme Court of Delaware reversed, noting that there was nothing wrong with an adult adoption done primarily to create inheritance rights. (In re Adoption of Swanson, 623 A.2d 1095 (1993).)

BEST INTERESTS OF THE CHILD
Regardless of type, adoptions can be granted (or in the case of an equitable adoption, recognized) only by a court and are allowed only when the court declares the adoption to be in the best interests of the child. (The best interest of the child does not apply in adult adoptions; see discussion, above.) To assist the court in making this determination, the state (or local) welfare department conducts an investigation into the home maintained by the prospective adopting parents. The court looks at:

* the occupations, earnings and stability of the prospective parents
* the medical, emotional and physical needs of the child
* religious and racial compatibility (religion and race need not be the same, but the court looks at the potential societal difficulties if they are not)
* whether the prospective parent has any criminal record or history of child abuse, and
* the age of the child.

CHILD'S CONSENT
In addition, most states require the consent of the person being adopted if she is over a certain age, usually about 12.

PREFERRED PARENTS
In county and agency adoptions, most state welfare departments give preference to married people in granting adoptions. This is done by placing children to be adopted in the homes of married couples and by giving married couples more favorable recommendations than single people in adoption recommendation reports. In a growing number of states, however, anyone capable of being a good parent may adopt, including single people. In fact, increased numbers of single people and lesbians and gay men as single people and as couples are being allowed to adopt to encourage adoption of hard-to-place children.

New Hampshire (Revised Statutes Annotated Section 170-B:4) and Florida (Statutes Annotated Section 63.042), however, expressly prohibit lesbians and gay men from adopting. The Florida law was declared unconstitutional by a lower court--Seebol v. Farie, 16 Fla. L. Weekly (Monroe County Court 1991); the state of Florida chose not to appeal.

HARD TO PLACE CHILDREN
Counties and agencies often have a hard time finding adoptive parents for older children (above age five), minority children, children with special needs (such as abused or neglected children), children with physical and mental disabilities and underprivileged children. Children in these categories are sometimes referred to as "un-adoptable." As single, lesbian and gay people seek to adopt, however, more children with special needs may be adopted. This is because single, lesbian and gay people have traditionally been prohibited from adopting and are often more flexible than married couples about adopting older, disabled or underprivileged children.

GRANDPARENTS' RIGHTS
When a child is adopted, the biological parents' rights are usually terminated. A few states, however, allow visitation by the grandparents when the grandchild is adopted by a stepparent, particularly when the biological parent is deceased. Cases that hold that a grandparent may petition the court for visitation after a stepparent adoption when the biological parent has died include In re Adoption No. 92A41, 622 A.2d 150 (Maryland 1993), In Matter of C.G.F., 168 Wis.2d 62 (Wisconsin 1992) and People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320 (New York 1981). In addition, California allows a court to grant visitation to the grandparents of a child adopted by a stepparent when the biological parent is deceased. (Family Code Section 3102.)

PROBATION DEPARTMENT INVESTIGATION
When an adoption is pending, the court handling the matter will want the family environment investigated. The investigation usually consists of a series of visits to the home by a social worker who physically views the surroundings and talks to whomever is present. Most visits are scheduled; often, however, the social worker makes at least one unannounced visit. Depending on the state, the investigation will be conducted by the juvenile probation department, the adult probation department or the welfare department.

Agency and county adoptions usually require substantially more investigation by the probation department. This is because a child placed for adoption by an agency or the county is considered a "ward of the state" and the state is responsible for representing the interests of the child. In stepparent and independent adoptions, however, the social workers may make only one or two visits to the adoptive parents' home. This is because in stepparent and independent adoptions, the biological parent or parents have selected adoptive parents and are representing the interests of the child.

ADOPTION RECORDS
Because of the potential psychological trauma to both the adopted child and the birth mother, nearly all states have laws denying adopted persons access to court information containing the identities of the birth mother, or other information which would lead to the discovery of her identity--such as the location of the adoption or the person who arranged the adoption.

Some states, however, including Alabama (Code Section 26-10A-31), Alaska (Statutes Section 25.23.150) and Kansas (Statutes Annotated Section 65- 2423), allow adoptees who have reached adulthood access to this information. A few other states allow an adult adoptee access to the records only if the birth mother consents. Arizona adoptees and birth parents may sign up to be "found" by the other, or, conversely, to request that no contact be made. (Revised Statutes Section 8-121.) And most states permit limited access to the birth parents' medical histories when necessary.

BIRTH CERTIFICATES
A birth certificate is a document completed by a county official or a person delivering a baby, and then filed with the county shortly after a baby is born. Its purpose is to record the birth. A birth certificate can be modified to reflect an adoption. In which case the adoptive parents' names replace the biological parents' names and the child's name is changed to whatever name is given to her by the adoptive parents.

Birth certificates specifically request the names of the child, the mother and the father, if he is known. In California, as of 1993, same- sex parents who are adopting a child (or the same-sex partner of a biological parent who is adopting her partner's child) may have both names listed as parents on the birth certificate.

From 'Nolo's Pocket Guide to Family Law'
by Attorneys Robin Leonard & Stephen Elias
Copyright (c) 1994 Nolo Press

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