INTRODUCTION

 

Adoption can serve as a very useful legal relationship option for some relative-headed families. For others, it may be less appropriate. Before pursuing adoption, caregivers should understand all of the legal ramifications of adoption and consider other options like legal custody or guardianship as part of the process.

 

Legal adoption involves a judicial proceeding in which the following occurs:

  • Birth parents are proven unfit or voluntarily surrender all their parental rights (such as the right to visit) and responsibilities (such as child support) 
  • The court must generally terminate both parents’ rights and responsibilities unless --
    • one parent is dead
    • a step parent is adopting or
    • in some states only, paternity was never established and need not be terminated

Upon termination of parental rights:  

  • Relative caregivers become the "parent" in the eyes of the law. A grandmother, for example, becomes “mom.” As an adoptive parent, access to services on behalf of the child is the same as for any birth parent.
  • Children can no longer automatically inherit from the birth parents' estate, be included on the birth parents' private health insurance policies, and receive benefits through the birth parent, such as military or disability.  Instead, children can inherit, be included on any private health insurance policies, and receive military or disability benefits as the adoptive child of the relative. Consequently, it is important to consider these financial ramifications when considering adoption.
  • Birth parents cannot reappear one day and go to court to attempt to reclaim their rights and responsibilities, as they can with other legal options.  

Although adoption also involves many families outside of the child welfare system, adoption is one of the primary avenues for creating permanence for children in foster care and is therefore highly legislated. This analysis of adoption will focus on:

 

SUMMARY AND COMPARISON OF EXISTING STATE LAWS
 

Relative Preference

Only nine U.S. states have explicit statutory provisions giving preferences to relatives in adoptions. As with preferences for relative placements, the language and meaning of these statutes differ widely.

 

Three states specifically provide that relatives are preferred to non-relatives in adoptions: 

  • Alabama (“may adopt” after having lived with the relative for a year)
  • Kansas (“shall give preference”)
  • Nebraska (“preference shall be given to relatives”)

 Two other states require that an attempt be made to allow relatives to adopt: 

  • Alaska (attempt to locate and investigate a relative before identifying an adoptive placement)
  • Texas (“shall attempt”)

 Four states require that relatives “shall be considered” for adoptive placement:

  • Indiana
  • Minnesota
  • Ohio
  • Wisconsin

Four additional states give general placement preferences to relatives, which could include adoptions:

  • Arkansas (“shall be given”)
  • Idaho (“shall consider”)
  • Illinois (“may place”)
  • Nevada (“must give”)

Other state laws facilitate relative adoptions, but do not explicitly prefer them. Five states specifically allow parents or guardians to agree to surrender their children to relatives for adoption: Connecticut, Georgia, Virginia, Louisiana, and Missouri. California calls for an “adoption fast track” for relatives wishing to adopt from the foster care system.

 

Fourteen states make it easier for relatives to adopt by allowing courts to waive or by simply exempting relatives from certain requirements:

 

State

Requirement Exemption

Arizona

pre-adoptive investigation

Colorado

assessment and approval requirements

Delaware

placement for adoption or supervision by child welfare department or licensed agency

Iowa

child in residence with perspective adoptive parent and pre-placement investigation

Kentucky

placement for adoption by child placing institution or agency or written approval of the Secretary

New Jersey

preliminary hearing

New Mexico

heightened review of placement for independent adoption

North Carolina

pre-placement assessment

Oregon

home study requirements waiver

Rhode Island

pre adoptive report

South Carolina

investigation or report, accounting of disbursements, final hearing time requirement, and appointment of independent counsel

Tennessee

residency requirement

Utah

pre-placement adoptive evaluation

Vermont

pre-placement evaluation

 

The remaining eighteen states statutory codes do not include any type of language giving preferences or other considerations to relatives who are adopting children. These states and the District of Columbia may implement preferences in policy and practice, but their codified laws do not explicitly include them: Florida, Hawaii, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, New York, North Dakota, Oklahoma, Pennsylvania, South Dakota, Washington, West Virginia, and Wyoming.

 

Adoption Assistance

Adoption assistance payments may be available to relative caregivers who choose to adopt the children in their care. All states provide adoption assistance on behalf of certain children who are adopted from the child welfare system.

 

States may receive federal reimbursement, through Title IV-E of the Social Security Act, for a portion of the adoption assistance payments made on behalf of very poor children who have “special needs.”[1] “Special needs” are defined by the state, but generally include characteristics or conditions that make it difficult to place the child with adoptive parents without a subsidy.[2] As with foster care, Title IV-E eligibility can make a difference in the amount of the subsidy available and in whether other benefits, like eligibility for Medicaid, come with the subsidy. 

 

Of the 50 states and the District of Columbia, all but two states (Delaware and Georgia) have provisions in their state laws providing for adoption assistance. These provisions address various aspects of the state’s program, including how they define special needs; compute the monthly payment; and whether assistance with recurring expenses is available. 

 

The North American Council on Adoptable Children has comprehensive profiles for each state’s program and a chart comparing all states available on its website. These include not only their state law provisions, but also each state’s policy and practice. 
 

Open Adoption

Thirty-one states have some type of statute concerning open adoption.

The classic version of this type of law allows the prospective relative adoptive parent and birth parents to develop an agreement so that the child can have post-adoption contact with the birth parents, siblings and/or other relatives. Although enforceable by the courts, invalidation of the adoption is never a possible remedy for failure to adhere to an open adoption condition such as visitation.  Eighteen states have a variation of this law: Arizona, California, Indiana, Kentucky, Maine (sibling contact only) Maryland, Massachusetts, Minnesota, Montana, Nevada, New Mexico, Oklahoma, Oregon, Rhode Island, South Dakota, Washington, Virginia, and West Virginia.

 

In three states, the laws specify that these agreements are non-binding and therefore not enforceable by the courts: Ohio, Tennessee, and Vermont. 

 

Six states specifically allow open adoptions only for children who have been in state child welfare custody: Connecticut, Florida, Louisiana, Nebraska, New Hampshire, and New York. 

 

Additionally, four states have laws that concern post-adoptive visitation with birth parents and siblings. Although these laws are not what are typically known as open adoption laws, they concern post-adoption visitation and are therefore closely related:

  • In Alaska, the law states that nothing in its statute prevents visitation between an adoptee and his or her birth parents or other relatives.[3]
  • Arkansas' lawmakers explicitly state that sibling visitation must not terminate after a child has been adopted from state custody.[4] Given the thousands of tragic anecdotes of children being denied contact with their siblings after an adoption, this type of declaration in the law could be critical for brothers and sisters who want to continue to be part of each other’s lives. 
  • llinois goes further by requiring “Post Adoptive Reunion Services” to facilitate contact between adoptees and their siblings when adopted or still in the care of the child welfare system.[5]
  • North Dakota requires that all agreements concerning the future conduct of any party with respect to the child be attached to the court’s report in an adoption proceeding.[6]

 

LEGISLATIVE TRENDS

The legal concept of adoption dates back only about 160 years. Adoption laws were not meant to interfere with the practice of relatives assuming responsibility for children whose parents could not care for them. One of the earliest statutes was enacted in Massachusetts in 1851. Only since 1929 have all states allowed legal adoption. [7]

Because almost a fourth of the foster care system is comprised of children in relative care and adoption has long been legally recognized as a preferred avenue for creating permanence for children, relatives are often encouraged by the child welfare system to adopt. Since studies have shown that children thrive in relative care, a subset of laws granting relatives preference in adoptions has arisen. In some cases, adoption well suits the needs of all involved. Caregivers may continue to get financial assistance through adoption subsidies and the child may have a greater sense of belonging, in addition to other advantages. 

 

Open adoption laws originated roughly fifteen years ago and roughly doubled between years five and ten.  More are undoubtedly on their way. These laws are not designed solely for relative caregivers, but they can suit the needs of these families well. The enforceable contract can make birth parents more comfortable with the adoption since it provides for ongoing visitation, contact with the child or at the very least updates, such as yearly photos. Birth parents remain, in a sense, part of the family.

 

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and available for all users in the state law and legislation database.  That database, as well as the other information on this website, is an ongoing project. If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author:  Ana Beltran, Special Advisor, Generations United, at abeltran@gu.org.   

 

 

 

[1] The federal Title IV-E program is open to those adoptive children who meet Aid to Families of Dependent Children (AFDC) criteria; receive Supplemental Security Income (SSI); are babies born to minor parents who are in foster care; and children who received Title IV-E Adoption Assistance in a previous adoption, but whose original adoption was dissolved or the adoptive parents died. Children who do not gain eligibility through one of these methods may be non Title IV-E-eligible and receive a state subsidy financed with state or local funds (i.e., without federal reimbursement). The benefits provided under state programs are often—but not always—similar to benefits provided using federal funds.

[2] 42 U.S.C. section 673(c).

[3] Alaska Stat. section 25.23.130.

[4] Ark. Code Ann. section 9-9-215.

[5] 20 Ill. Comp. Stat. 505/7.5.

[6] N.D. Cent. Code section 14-15.1-05.

[7] Schwartz, M. (1996). Reinventing guardianship: Subsidized guardianship, foster care, and child welfare, Review of Law & Social Change, 12,441-82.