FAQ Independent Adoptions: Uncontested vs. Contested
Disclaimer: Adoptions are a complicated procedure. A contested adoption is rare and procedurally difficult. This is a general outline of the procedure, but there are many other steps and considerations in any adoption case. You should contact an attorney if you are interested in adopting a child that is not biologically yours.
1. What Is an Independent Adoption?
An independent adoption is an adoption that is arranged not through a child placement agency. Generally, independent adoptions are when a step-parent seeks to adopt their step-child, a same-sex second-parent wishes to adopt their own child, or when a third party seeks to adopt a child that is not biologically their own. These adoptions can be uncontested, meaning the biological parents, the adoptive parents, and the adoptive child all agree to the adoption. If one or both of the biological parents do not consent to the adoption, then these adoptions can be contested.
2. What Is the Independent Adoption Process?
1. File a Petition: First, the prospective adoptive parents must petition the Court for the adoption. The Petition requires certain information and documentation to be filed with the Court, such as birth certificates, death certificates (if the birth parent is deceased), marriage certificates of the prospective adoptive parents, as well as statements of health for the prospective adoptive parents and the prospective adoptee.
2. Consent of the Child: If the child is over the age of 10, the child must consent to the adoption, and be represented by an attorney.
3. Consent of the Parents: Generally, the biological parents must consent to the adoption. The consent must either include Termination of Parental Rights (“TPR”) or not.
If TPR Is Included: Generally, when an adoption is granted, the adoptive parents become the legal parents for all intents and purposes under the law. When the biological parents consent to the adoption and agree to terminate their parental rights, that parent will no longer have an obligation to the child—legally or otherwise. The child will only be recognized as the child of the adoptive parents.
If TPR Is Not Included: In a step-parent or second-parent adoption, one biological parent will be retaining parental rights. So, one parent will consent to the adoption, and consent to terminate their parental rights, while the other parent will consent to the adoption, and maintain their parental rights.
4. Investigation: Before the court conducts a hearing on the adoption, the court will order a home study, and conduct interviews with the adoptive parents, the child, collateral witnesses, and will allow the birth parents to be interviewed. The court investigator will issue a report, indicating whether they recommend the adoption. Generally, this is required for both uncontested and contested adoptions. 5. Hearing: In both uncontested and contested adoptions, there will be a hearing on the adoption, and the court will determine if it is in the best interest of the child for the adoption to be granted. If granted, the parental rights of the biological parents will be terminated (unless the biological parent consented without TPR, such as a step-parent adoption). If denied, then it is as if nothing changed. The biological parents remain the parents of the children.
3. What Is a Contested Adoption?
A contested adoption is when one or both parents do not consent to the adoption. Generally, the prospective adoptive parents seek the consent of the biological parents before filing the Petition for adoption. However, if one parent does not consent or cannot be located, then the case must proceed as a contested adoption.
4. Can the Court Grant an Adoption Over Parental Objection?
Technically, yes, but it is extremely rare and reserved for very specific circumstances. The prospective adoptive parents have a high burden to prove to the court that an adoption over parental objection is in the best interest of the child. Generally, the court can only grant an adoption over a parents’ objection if the biological parent has not had custody of the child for an extended period of time, that the prospective adoptive parents have had custody of the child for an extended period of time, that the child is bonded with the prospective adoptive parents, and that the biological parents have not maintained meaningful contact or provided support to the child. There are other factors the court considers, but it is important to know that one’s right to parent their children is a fundamental right, and constitutionally protected, so the courts are concerned with protecting that interest.
5. What Is the Effect of Adoption?
An order for adoption legally severs ties with the birth family. The adoptive parents become the child’s parents for all intents and purposes. The child’s name may be changed if that is requested. The birth parents will be removed from the child’s birth certificate and will be replaced by the adoptive parents.
6. Can the Birth Parents Remain in the Child’s Life?
If all parties agree, then yes. If the birth parent consents to the adoption and wishes to remain in the child’s life in some way, the adoptive parents and the birth parents can enter into a Post Adoption Consent Agreement (“PACA”) that outlines the expectations after the adoption. Sometimes the PACA can include visitation, or it can simply be the agreement that the adoptive parents will keep the birth parents informed of major life events in the child’s life. The parties can be creative as to what this looks like. If a court grants an adoption, the court will not order any type of post-adoption contact—that must be by agreement of the parties.
If you have questions about contested or uncontested adoptions, please contact Laurie Wasserman at email@example.com or 410-842-1070. The legal team at Wasserman Family Law is here to help guide and advocate for you.
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