General Practice, Solo & Small Firm DivisionMagazine
BY HARLAN S. TENENBAUM
Of the more than one million people in the United States who wish to adopt, many couples and individuals seek to adopt from abroad. Last year more than 16,000 children were adopted internationally, and an almost 15 percent annual increase in the number of intercountry adoptions has occurred in the last five years.
Why has there been such an increase? The primary reasons include the small number of healthy U.S. infants available for adoption; adoption agencies’ stringent rules and sometimes arbitrary preferences regarding who may adopt; and prospective adoptive parents’ fear, inspired by an ill-informed media, that birthparents may interfere with the family after adoption. Thus, many people view intercountry adoption as the best vehicle through which to build a family.
In the United States, intercountry adoptions are accomplished in one of two ways. The most common adoptions are those arranged by private, nonprofit international adoption agencies licensed by the states in which they operate. Such agencies perform pre-and post-adoptive services, such as a home study and post-placement visits, and advise the adoptive parent about U.S. immigration procedures. The agency handles the paperwork and communications and matches a client with a child through either a child-placing agreement or contract with a foreign source. The foreign source identifies the orphan, obtains legal custody, and assists in arranging for a passport and immigrant visa for the child. At least one adoptive parent is usually required to travel to the child’s country in order to complete the adoption, after which the child returns home with the parent. Some countries, however, do allow an agency to escort the child to the United States, with the agency taking responsibility for the child until the U.S. adoption is completed.
The second type of intercountry adoption is "parent initiated," also known as "direct"31 or "independent" international adoption. Here, the prospective adoptive parent already has a particular child in mind to adopt, or seeks a foreign intermediary or lawyer to help eliminate bureaucracy. This type of intercountry adoption is often problematic if the consultant is unable to obtain copies of the mother’s release, the decree of abandonment, or the child’s birth certificate. Neither the initiating of the adoption hearing abroad nor obtaining INS clearance for the orphan’s U.S. visa can be accomplished unless these documents are obtained.
Although a U.S. lawyer may represent a client through any or all steps of an international adoption, typically an international adoption agency performs most tasks, including obtaining an immigrant visa for the adopted child and arranging for the child to come to the United States. Thus, lawyers can best help their clients by providing general information about international adoption, advising clients on choosing an adoption agency, and performing the U.S. adoption services.
A foreign adoption can be a long and complicated process. Once your clients have completed the initial paperwork, they have very little, if any, subsequent control over the process. This can be very frustrating. Foreign adoptions often involve countries in which the culture and commerce are dramatically different from ours. Some countries permitting foreign adoption may have unstable governments, or strong anti-international adoption sentiment may exist, even though it is legal. There may be delays in the adoptive process, or it can even be halted by strikes, moratoriums, scandals, long vacation periods, or complete changes of government.
Children available for adoption from foreign countries are in the custody of their country of birth and all adoption procedures must be completed under the laws of the child’s country of birth. U.S. agencies do not have the authority to mandate activities or direct individuals in the foreign country for the benefit of American families. Although a child may be referred to your client, the child is not theirs until the in-country adoption process is finalized by decree and a visa is approved by the U.S. embassy. Until that time, the child remains in the custody of the birth country and may be withdrawn from adoption regardless of the adoptive family’s wishes. Unfortunately, U.S. agencies have no control over this.
Similarly, U.S. agencies cannot guarantee a time frame for any particular part of the process; since there are so many variables, they can only estimate time frames. The same is true for the amount of time a family may have to wait for a referral. This varies from country to country and depends on the number of families waiting, number of children referred, and status of adoptions in a specific country. The only control your clients have in the process is at the beginning, when they complete the home study, submit the immigration work, and prepare the dossier for the foreign government. When these are completed, an agency considers them ready to accept the referral of a child.
Costs include, but are not limited to, charges for the home study, post-placement services, fees to the foreign source, transportation, translation, document certifications and authentications, postage, telephone calls, immigration work, child’s visa, your client’s visas, travel to and accommodations in the foreign country, agency program fees, orphanage donations, humanitarian aid donations, gifts to individuals in the foreign country, and more. At the time of application and referral, an agency should provide your client with an estimate of the current fees; however, an agency typically cannot guarantee the final amount.
All fees and other expenses that your client pays to an agency or the foreign source are typically nonrefundable. If the foreign source is unable to complete the adoption process for a specific child for whom your clients have already paid the agency fee, some agencies will continue to work with your clients until a new adoption for them is completed. The agency program fee would typically be credited toward the new fees, but most U.S. agencies have little or no control over any monies paid to foreign individuals, agencies, or organizations abroad and do not consider themselves responsible for refunds. Currently, fees for international adoptions range from $10,000 to $30,000 per child.
There are many reasons why children from other countries become available for adoption. Some are born out of wedlock, and because there is little or no help for single mothers with dependent children in foreign countries, some mothers release their children for adoption in order to provide a better life for the child. Poverty, ill health, death, divorce, abuse, or abandonment can also be reasons that children enter the child welfare system.
Background information is rarely available, including significant medical, prenatal, social, or developmental history regarding the child or the biological family. Sometimes even actual birth dates are unknown. The prospective adoptive family may or may not receive a picture of the child at the time of referral, although occasionally pictures will be available at a later time during the process. Medical evaluations attempt to identify serious medical problems, but medical practices abroad often do not allow for the comprehensive screening that is available in the United States, and some conditions may be undiagnosed. Families who adopt internationally must understand the reality of medical risk.
Children adopted internationally may also have suffered emotional trauma or deprivation caused by institutional life, multiple moves, loss of a loved one, neglect, or abuse. Developmental delays are common in these children and it is impossible to determine whether the delays are due to a lack of stimulation and are therefore correctable; or whether the child has a genetic mental deficiency. Older children from foreign countries have limited educational experiences, and it may take them many years to catch up. Children may also have undiagnosed language or learning disabilities. Families who adopt children internationally must recognize that there are no guarantees for health, intelligence, psychological stability, appearance, development, or behavior of the child.
Choosing an Agency for International Adoption
International adoption has become a lucrative business. The combination of people motivated by greed, and parents desperate to adopt a child under any circumstances, creates the potential for financial, emotional, and, in some cases, physical disaster. The lack of regulatory requirements for international adoption agencies in some states has permitted certain individuals inexperienced in the area of adoptions to set up businesses. In addition, while the Internet has become a great equalizer in the field of international adoption, it has also enabled many unscrupulous individuals to present fraudulent programs and program histories to an unsuspecting public. Virtually anyone can design a web page, insert pictures of children from foreign countries, and advertise services to innocent prospective adoptive parents. Exorbitant fees have been extorted.
Two of the more common abuses involve the intentional offering of a supposedly healthy child for adoption who is later found to be seriously ill, and obtaining prepayment for adoption of a nonexistent or ineligible child. In certain cases, individuals connected with these fraudulent activities have been prosecuted, but many others have simply disappeared, along with the money.
One of the easiest ways for clients to avoid the heartache of losing a great deal of money or a potentially adoptable child is to use only a reputable adoption agency. Many potential adoptive parents can find an international agency by word of mouth, through recommendation by a lawyer, by contacting adoption organizations such as the National Council for Adoption, or by researching books on the subject.
Before your clients commit to any agency, they should know exactly what services the agency will perform and what its fees will be. Your client should call or write to request literature that explains the agency’s requirements for adoptive parents, fees, policies, and number of international placements or type of experience the agency has in the world of international adoption. In addition, the agency should be able to provide names and telephone numbers of post-adoptive parents as references.
Most intercountry adoptions follow a specific process: First, an adoptive parent applies to a licensed agency for the performance of a home study, and applies to the Immigration and Naturalization Service for the I-600 packet. Adoptive parents who have not yet identified a child or intend to go abroad to locate a child for adoption will file a I-600A form. The application is filed at the local INS office, and the couple is advised to collect documents necessary for their dossier.
Depending upon the country and the agency program, the documents might include a letter of intent to adopt; power(s) of attorney; certified copies of birth certificates; a certified copy of a marriage certificate (for married couples); medical reports that include test results for TB, VD, hemoglobin, and HIV virus; local and state police clearances; letters from employers; a copy of the most recent IRS 1040 form, photos of the clients and their home; and a letter to the court. While the adoptive parent is gathering these documents, the agency is completing the home study.
All of the documents, including the home study, must undergo a three-step seal process. First, the documents must be notarized with a raised seal and the notary’s signature and expiration date; the seals must then be verified by either the Secretary of State or the Office of the Great Seal of the client’s state of residence. Step 3 requires the documents be sent to the Department of State Authentication Office, which then forwards them to the embassy of the child’s home country. The embassy authenticates the documents and returns them to the agency, at which point the dossier is forwarded to the agency’s international liaison. Then, the adoptive parent(s) awaits a referral. The referral may or may not include a photo, the age of the child, and medical information.
Once a referral is received and accepted, the liaison in the foreign country typically begins the adoption process. Depending upon the country, the foreign court will set a date for the U.S. family to arrive to finalize the adoption. The family will be abroad for anywhere from several days to several weeks. The agency’s liaison assists with the adoption process, while the family heads to the embassy to pick up the child’s visa. Then, if all has worked as planned, the adoptive parent and child will return to the United States.
Many adoption agencies provide the services necessary for a foreign adoption; however, certain practices set some agencies above others, and these, of course, are the ones you’ll prefer your clients to use. The distinction between a good international program and a great international program is found in the quality of services provided, both domestically and abroad, and the amount of preparation and support the agency provides the prospective adoptive parent prior to travel and upon return.
Advise your clients to ask agencies about the following policies:
• Does the agency provide international risk counseling?
• What form of post-adoption support and contact is available?
• Does the agency refer to specialists with expertise in adoption issues such as attachment disorders?
The days of prospective adoptive parents who believe that love conquers all potential physical and mental health issues should be over. If an agency does not provide referrals, or minimizes the health issues of children adopted from abroad internationally, strongly advise your clients not to deal with that agency. Adoptive parents need to be aware of all the potential risks they are undertaking, so that they can make a fully informed decision.
Another important piece of information your clients can check is whether the agency is a member of national or international adoption organizations, and whether members of its board are affiliated with the ABA Family Law Section Adoption Committee or other national legal organizations specializing in the practice of adoption law. Inform your clients about the points of the Hague Convention on Intercountry Adoption, and what effects it may have on their adoption, and suggest they ask the agency about its familiarity with Convention rules. By working only with those agencies in the know, your client will significantly reduce the chances of getting burned in the process.
Information about the quality of services provided abroad are best determined through conversations with other satisfied adoptive parents referred by the agency. Have your clients call these people and ask specific questions:
• Were you met at the airport by the agency’s foreign liaison?
• Were your needs met while abroad?
• Was someone available for you 24 hours a day to cover emergencies?
• At any time did you feel threatened or in physical danger?
• Were there any lengthy, unexpected delays?
• Were you apprised of all that was happening and made to feel a part of the process?
• Were you forced to make any payments while abroad of which you were not informed prior to your departure?
• Do you have any videos or pictures that you are comfortable sharing?
• How were you treated by the agency upon your return?
If it is possible for your clients to choose an established international agency in their home state that can provide all of these services, they should do so. Otherwise, the client will need to deal long distance for the foreign arrangements. Some agencies accept out-of-state clients who have obtained a home study in their state of residence. Adoption House, Inc. (877-ADOPT97), provides adoption services to residents in Delaware and Pennsylvania and to residents of states where AHI networks with other licensed agencies, as do most U.S.-based international adoption agencies.
For more information, contact the National Council for Adoption, 1930 17th Street NW, Washington, DC 2009, 202/328-1200; or the Department of Health and Human Services, Administration on Children and Families, Adoptions Opportunity Branch, Children’s Bureau, P.O. Box 1182, Washington, DC 20201, 202/245-0671.
Performing the U.S. Adoption Services
In most cases, the formal adoption of a child in a foreign court is legally acceptable in the United States, but in some cases readoption of the child once in the United States is required. Such circumstances include, for example, cases in which the adoptive parents did not see the child prior to or during the full adoption proceedings abroad; or, for married couples, cases in which both parents did not see the child prior to adoption. The parents must meet the preadoption requirements of their state of residence in order for the child to qualify for a U.S. visa covering adoption under appropriate state laws. This is true even if a final adoption decree was issued in the foreign country. The child must be readopted after entry into the United States.
Readoption is also strongly recommended in cases in which it is not required. Due to political instability of some foreign governments, language differences, and differences in state family law, readoption provides an additional level of emotional and legal security for both the adoptive parents and the child. Also, not all countries use the same definition of adoption as is used in the United States. In some South American and European countries, for example, adoption is defined as "simple adoption," which is actually a form of permanent foster care, so there is no finality. Also, countries that recognize dual citizenship could seek to enforce laws that could adversely affect the relationship, such as mandatory military service or even tax payments. If the child was not readopted in the United States, the child might be required to serve in the military of the birth country or face repercussions for not having done so, should the child ever decide to return to that country.
Although the United States grants permission for the child to enter by granting a visa, this does not automatically confer citizenship; nor does it require any state to issue a birth certificate. Issuance of a birth certificate is a state, not federal, function. Some states will issue a new birth certificate upon proof of the finalization of the foreign adoption; others will not. A state court is not required automatically to recognize a foreign adoption decree. The status of the child can always be subject to challenge in a state court unless an adoption decree is entered in a state in the United States.
Since, under the U.S. Constitution, every state must give full faith and credit to the laws of another state, readoption confirms the status of the child under U.S. law, making it unnecessary to rely on the validity of foreign decrees. This could become important if your client moves to a state that does not recognize international adoption, or if future issues arise, such as custody disputes, distribution of property, survivor’s benefits, or child support.
Upon readoption, the court issues a decree that enables a new U.S. birth certificate to be obtained in any state. This can subsequently be used in place of the foreign birth certificate. The parents and child might find it beneficial to have a set of court documents written in English attesting to the adoption; if originals of such documents are needed, they can more easily be obtained from a state government than a foreign country. Practically speaking, the simple act of registering a child for Little League or school could become a major hassle without a U.S. birth certificate. Each state has its own laws and regulations concerning adoption. Typically, it is a straightforward and relatively easy process. CL
Harlan S. Tenenbaum is a lawyer and managing director of Adoption House, Inc., a fully licensed nonprofit adoption agency specializing in domestic newborn and international adoption. He is vice-chair of the ABA Family Law Section’s International Committee, and is a member of both the ABA Family Law Section Adoption Committee and the International Law and Family Law Section Joint Committee on the Hague Convention on Intercountry Adoption. He can be reached by e-mail at firstname.lastname@example.org