GPSOLO April/May 2008
Things Every Lawyer Handling an Adoption Should Know
One day you unexpectedly hear from an old college friend. “You’re a lawyer, now!” he says. “Um…yes,” you reply, wondering what might come next. “I have a favor to ask of you,” he says. “Can you help me and my wife with our adoption?” What a relief, you think. This should be simple, and even enjoyable. How complicated could an adoption be? “Sure, I’ll be happy to help you out,” you quickly respond, confident that this matter will amount to little more than a few hours of paperwork.
Several weeks later, however, you find out that adoptions are much more complicated than you, a general practitioner, had ever imagined. You are knee–deep in your state’s adoption and juvenile statutes and you are desperately trying to figure out several federal laws that might apply. In talking with your college buddy and his wife, you’ve discovered that the birth mother who has chosen your clients as the prospective adopting parents lives in another state, needs rent money for the final months of pregnancy, and has a Native American grandmother who is half Cherokee. The birth father is serving on active duty in the Marine Corps and is totally unaware that his former girlfriend is pregnant. To make matters worse, your clients are now asking if there is any way to defray the cost of the adoption, including the many hours of legal work that are beginning to add up. They’ve been through years of infertility treatments, leaving them financially drained and emotionally vulnerable.
Although there are relatively few lawyers who practice adoption law exclusively, many attorneys may be asked to handle the occasional adoption case. Adoption is an attractive area for a sole practitioner as it is often uncontested and can yield heartwarming results. Although adoption law is widely considered to be “happy law,” it is by no means an easy area or one that lacks significant hurdles. Neglecting to appropriately address all of the applicable laws in the context of the emotionally charged climate of adoption can destroy a placement and devastate your clients and their families.
When handling an adoption, it is important to be aware that state law governs for the most part, but there may also be applicable federal laws. Adoption law is entirely statutory. A universal standard judges apply is whether it is in the child’s best interest to be adopted by the petitioners. In addition, there is always a termination of the rights of the biological parents. There are several features common to adoptions yet variable according to state laws.
The best–case scenario begins when the biological mother voluntarily relinquishes her rights, as is anticipated in your friend’s case. Caution your clients that an emotional roller coaster may lie ahead. Even the best–laid plans may change once the biological mother gives birth. If she remains steadfast in the adoption plan, she will sign an array of documents prescribed by her state (the “sending state” in an interstate adoption), your clients’ state (the “receiving state”), or both states. Some statutes allow her to relinquish rights immediately after the baby is born (almost never pre–birth), while others require a waiting period. Depending on the state, her relinquishment may be irrevocable upon signing or after a limited waiting period, usually an exact number of days ranging from two to 30 but occasionally extending several months until the adoption is finalized in court.
Interstate adoptions. Interstate adoptions have become increasingly common, and all of 50 states plus the District of Columbia and Puerto Rico have adopted the Interstate Compact for the Placement of Children (ICPC), which, as a uniform law rather than a federal law, is found within your state’s statutes. When a child is located in a different state from the adopting parents—as is the case with your college friend—the ICPC must be considered. In order to comply, adopting parents may not bring the child across state lines into the receiving state for purposes of adoption until they receive permission from the ICPC administrators in both the sending state and the receiving state. Following the birth, the attorney in the sending state submits a packet of documents to the ICPC administrator in that state. Once the sending state administrator approves, he or she forwards the packet to the receiving state’s administrator. Typically, clients should expect to wait several business days in the sending state, but the time varies based upon completeness of the packet, state agency policies, and current volume of cases. Possible sanctions for noncompliance with the ICPC may include remedial measures requiring adopting parents to return the child to the sending state, denial of the adoption, or even criminal penalties. The ICPC does not apply to stepparent adoptions or to some placements with relatives, depending on degree of kinship.
Legal counsel for the birth mother. Offer to arrange separate legal counsel for the birth mother. You may be tempted not to do so—many states do not require separate counsel, the birth mother may be willing to waive such counsel, and you may be inclined to save your clients the additional fee because this is a non–adversarial proceeding. Ignore these temptations and arrange for separate counsel anyway. Interstate adoption will require an attorney in both states to ensure compliance with the ICPC. Locate a qualified lawyer for the birth mother in her home state to manage the sending–state portion of the ICPC and other sending–state issues, such as whether or to what extent your clients may assist the birth mother with rent and other pregnancy–related expenses. It is unlawful to buy or sell a baby, and states distinguish differently between legitimate reimbursements of pregnancy–related expenses and inducements to part with a child, the latter fraught with potential criminal liability.
Rights of biological fathers. Notice to the biological father is usually required if he does not voluntarily relinquish his rights. The rights of a father who has legitimated the child by marriage or legal action must be terminated in the same manner as those of the mother. The rights of an alleged biological father who has not established legal parentage may be terminated in most states based on notice that his rights will end unless he takes specific steps to establish a legal relationship with the child. States vary as to the burden he must meet if he wants to contest the adoption.
Many states have a putative father registry, a valuable tool in terminating a biological father’s rights if you are uncertain of his identity or whereabouts. The U.S. Supreme Court upheld the constitutionality of New York’s registry, now a model for other states, in a must–read case for grasping how biological fathers succeed or fail to establish rights via affirmative acts evidencing acceptance of responsibilities ( Lehr v. Robertson, 463 U.S. 248 (1983)). Adoptions often occur in the context of a “one–night stand” or a relationship that ended after conception, perhaps without the biological father’s knowledge of the pregnancy. Many states impute knowledge of possible pregnancy from an act of intercourse. Acrimonious breakups provide fertile ground for contested adoptions. The birth mother’s attorney may be able to elicit details helpful in your risk assessment, which you will discuss with your clients.
Servicemembers Civil Relief Act. In the case of your college friend, you learn (in time to avoid committing legal malpractice) that the biological father is serving on active duty in the Marine Corps and therefore has special rights with respect to notice pursuant to the Servicemembers Civil Relief Act (SCRA).
Members on active duty in the armed forces are granted special procedural protections by the SCRA. A servicemember is entitled to a stay of a civil matter for 90 days if military duties materially affect the servicemember’s ability to prepare or be present for litigation. The SCRA requires that a court stay proceedings for at least 90 days when the servicemember lacks notice and the court decides either that there may be a defense that cannot be presented without the absent defendant or that counsel has been unable to contact the defendant through a diligent search. The stay may sometimes be extended for another 90 days. (See, 50 USC §§ 501 to 596.)
If a birth father on active duty requests a stay or is granted an automatic stay, the adoption can be delayed for months. Delay is stressful for adopting parents because they fear the birth mother will back out after becoming attached to the child. Your college friend’s adoption eventually had a happy ending, although the course was lengthened by the logistics of complying with the SCRA. As a result of your discussions with the birth mother’s attorney on the impact of the birth father’s active duty, the birth mother agreed to e-mail her former boyfriend and tell him about the pregnancy and adoption. Although he indicated he would not contest the adoption, he was not willing to voluntarily relinquish rights because he was not convinced he was the biological father. Left with the necessity to serve him a notice that the adoption would proceed unless he took specific steps to establish legal rights, you decided to wait until he returned home from his overseas tour of duty. He met with his JAG officer, accepted the notice, and did not request a stay in the proceedings or take any subsequent action to reopen a default.
Indian Child Welfare Act. Fortunately, you know just enough about the Indian Child Welfare Act (ICWA) to alert you to the issue of the biological mother’s Native American heritage, passed along through her grandmother, who is half Cherokee. You quickly realize that failure to comply with the ICWA could render the adoption subject to challenge by a Cherokee tribe.
Prior to passage of the ICWA, many Native American children (called “Indian” children in the act’s now–outdated terminology) were removed from their homes and placed with non–Native American families; this had a negative impact on tribal culture by displacing children and removing them from their tribal heritage. In response, Congress passed the ICWA in 1978, requiring either that notice be given to an Indian tribe or that the act be otherwise complied with if a child to be adopted is either a member of that tribe or is eligible for membership. If the tribe considers the child to be a member or eligible for membership, the tribe may assert jurisdiction over the case and move that it be transferred to a tribal court. It is therefore important to screen birth parents regarding their ancestry and take steps to comply with the ICWA if the child is part Native American. Possible means of compliance include notifying the tribe, recognizing that the tribe may intervene, or carefully documenting the birth parent’s voluntary and intentional choice of a non–Indian family, her or his voluntary relinquishment before a judge, and the birth parent’s waiver of the protections of the ICWA. There are more than 400 federally recognized tribes and Alaska Native Villages, each with its own eligibility standards, practices, and procedures.
Adoptions involving the ICWA require special care. You may decide to associate co–counsel with ICWA experience to address compliance with federal and tribal laws. (See, 25 USC § 1901 et. seq.)
Open adoption. Counsel your clients about open adoption. Adoptions of the past may have been family secrets left undisclosed even to the adoptee, but today’s norm is to have some level of openness between birth and adopting families. With the exception of intercountry adoptions, there are currently very few closed adoptions. There are degrees of openness, and you should assist your clients in long–term planning, often including exchanges of letters or pictures (directly or through an attorney, counselor, or adoption agency) and sometimes including visits. Shared information among members of the triad (child, birth family, and adoptive family) can be very meaningful to the child as he or she grows up. This is particularly true during adolescence, when young people are trying to reconcile where they came from with where they are going. Although open adoption contracts are not enforceable in most jurisdictions, it is appropriate to prepare a letter of intent evidencing any plans for future contact. Some prospective adopting parents initially approach openness with fear or resistance, but in reality some degree of openness may be inherent in the birth parents’ decision to place a child for adoption. Counseling by a clinical social worker or other mental health provider may be invaluable to the parties in navigating these waters. Some states require that birth parents receive counseling prior to placement. Such counseling addresses the finality of adoption and other related issues.
Final checks. Before finalizing an adoption, the prospective adopting parents must complete a home study or home evaluation. In fact, this is usually required before the child is placed for adoption, and it is always required prior to transporting a child across state lines in an ICPC case. Typically, a licensed adoption agency or social worker performs the evaluation. Criminal background checks are required, so it is best to have your clients complete their Federal Bureau of Investigation fingerprint checks as early as possible in the process. This should help you avoid the unpleasant surprise of learning at the 11th hour that a client has a criminal record.
Pitfalls. Some adoption pitfalls are not widely recognized by general practitioners. A few states do not allow private (non–agency) placements. Many states allow adoptions to be arranged independently and completed by attorneys, who may or may not be allowed to participate actively in matching birth and adopting parents. Facilitators abound in the unregulated cyberspace of the Internet. Facilitators are licensed in a handful of states, but otherwise they operate unlicensed and without oversight, recruiting through advertising and matching birth mothers with hopeful adopting parents, often without ever meeting either party. Such “virtual” plans may result in disastrous and heartbreaking stories (e.g., a “birth mother” was never pregnant or who promised her baby to several different couples who all were simultaneously paying her living expenses). Facilitator fees tend to be hefty, as there is no shortage of couples desperately trying to adopt. Attorneys can provide a most valuable service in directing consumers to licensed providers and advising them of the risks and pitfalls in dealing with unlicensed people and organizations, especially remotely.
Public Agency Adoptions
Some adoptions arise from more adversarial circumstances. In every state, there is a procedure for involuntarily terminating parents’ rights in cases of abandonment, failure to establish a parental bond, or parental unfitness. Often such terminations are ordered by juvenile court judges following a state agency’s removal of children from their homes as a result of abuse or neglect.
Had your friends been foster parents seeking to adopt a child placed in their care 18 months ago by the state’s department of family and children services, you would immerse yourself in learning about the federal Adoption and Safe Families Act. You would learn, for example, that foster parents have a right to appear and be heard in juvenile court proceedings but not necessarily to intervene as parties in the termination of parental rights action that frees the child for adoption. You would perhaps file a motion to intervene, claiming that the state had violated the law’s “15/22 rule” by not having moved for termination by the time the child had been in foster care for 15 months.
You might assert a claim under the Multi–Ethnic Placement Act (MEPA) that prohibits an agency receiving federal funds from delaying or denying a child’s foster or adoption placement or denying a person the opportunity to be a foster or adoptive parent because of race, color, or national origin. MEPA applies if you have clients who feel they are being turned down by a public agency because their race is different from that of the child they wish to foster or adopt. Representing clients in public agency adoptions is a good starting point for attorneys with little experience in private sector adoptions. (See, 42 USC § 1996b.)
Tax Issues and Estate Planning
Regarding your friend’s hopes of defraying adoption expenses, there is good news in the form of the Federal Adoption Tax Credit. This may allow adopting parents to receive a dollar–for–dollar credit against their federal income tax liability, possibly equal to the amount of your fees and other “qualified adoption expenses.” The credit is available for the year in which the adoption is finalized, regardless of when the expenses were incurred. The adoption tax credit is not available for stepparent adoptions but applies to independent, agency, and relative adoptions.
In 2008, adopting families whose modified adjusted gross income is below $174,730 are eligible to receive the full credit amount of $11,650; those with incomes above $214,730 are ineligible; and those with incomes between these amounts are eligible for a partial credit. Figures are adjusted annually for inflation. To obtain the credit, an Internal Revenue Service Form 8839 must be filed with the taxpayer’s Form 1040.
Clients may be entitled to claim their adopted child as a dependent prior to finalizing the adoption, using an Adoption Tax Identification Number (ATIN). See the IRS website for details. The ATIN is useful because the process of obtaining a reissued or new Social Security card can be slow. Following finalization, the attorney or the court clerk applies to the state’s vital records office for an amended birth certificate. Then your clients may apply for a new or amended Social Security card. Advise your clients to consult with their accountant or with a tax attorney even if you can provide this basic information.
The event of adoption may revoke an adopting parent’s last will and testament unless the will was written to contemplate subsequently adopted children. Most if not all clients who adopt should update their estate planning documents, another service offered by many adoption attorneys.
The practice of adoption law offers unique rewards and it is a feasible area for sole practitioners so long as they undertake due diligence in grasping the applicable laws and recognizing the emotional nature of this work. When a complex issue comes up, it should be standard practice to consult or associate with a more experienced attorney on the case. The American Academy of Adoption Attorneys provides a good resource for finding an attorney with a substantial adoption practice: www.adoptionattorneys.org. The attorneys admitted as fellows in the academy have been vetted through an application process that includes recommendations and experience with numerous adoptions, including a significant number of interstate adoptions.
Even an uncontested adoption or seemingly straightforward case may quickly turn to a highly charged event with an uncertain outcome. With this knowledge in mind, consider whether you are the capable, concerned, enthusiastic, and empathetic lawyer that your college friends and other potential clients are seeking.
Ruth F. Claiborne and James B. Outman are principals and Amy K. Wallas is an associate in Claiborne, Outman, & Surmay, P.C., an Atlanta, Georgia, law firm dedicated to building and securing families through adoption, assisted reproduction, and estate planning. They may be reached at firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org.