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December 03, 2020


For some families, adoption is an essential option, whether by choice or out of necessity. And like most things in life, the law has a major role to play in adoptions. Here we look at some of the specific issues, but it is important to make sure that you have proper professional advice, likely both from a lawyer and from a mental health professional like a social worker, throughout the process.

The questions below should provide you some guidance while working through these issues.

How do I adopt a child?

Adoption laws vary. For a minor child who is not related to the adoptive parent(s), there are generally two types of adoptions: agency adoptions and private or independent adoptions. In addition, a child in foster care may be adopted by foster parents or relatives if the biological parents are unable to parent safely and the child remains in foster care for a significant period of time (the time period is set by state law).

What is an agency adoption?

In an agency adoption, the parents work through a state-licensed agency. Agencies often supervise the care of biological mothers who are willing to have their children adopted by others, and assist in the placement of children after birth. Some agencies specialize in placing children who have been born in foreign countries.

What is private adoption?

Private adoptions bypass the use of agencies, and may bypass long waiting lists altogether. The process begins when people wishing to adopt contact a lawyer who specializes in adoptions. The lawyer may work with physicians who are aware of women willing to give up children for adoption. Sometimes would-be parents place ads in newspapers or online seeking women who are willing to place their babies for adoption.

In most states, adoptive parents are allowed to pay a biological mother’s medical expenses and certain other costs during the pregnancy. But adoptive parents are not allowed to pay the biological mother to give up the child. The law treats this as a black-market adoption—in other words, as the buying and selling of children—and it is a crime in every state.

Do I need a lawyer when I am adopting?

No, but it may be a good idea. Assuming there are no complications with the adoption, you can likely do the required paperwork on your own or with the help of an adoption agency. However, if the adoption is complicated—for example, if you are adopting a child from another country—then having a lawyer may help tremendously.

Is court approval necessary for adoption?

Yes. Court approval is needed for both agency and private adoptions. Many states also require that the adoptive parents be screened and approved by a social service agency.

Once an adoption has gone through, what is the legal status of the adopted child?

An adopted child has exactly the same rights as a biological child. Similarly, adoptive parents have the same obligations to the child as they would to a biological child.

If biological parents give up a child for adoption, what rights and obligations do they retain?

In general, they lose all rights and have no obligations. They have no right of contact with the child, and cannot obtain information about the child. And they have no obligation to support the child.

What about “open adoptions”?

An open adoption is one in which the adoptive parents agree to let the biological parents have some continued contact with the child. Such contact might include periodic visits or an exchange of pictures and other information between the adoptive family and the biological parent(s). The nature of the contact is often specified in the adoption agreement. Open adoptions are a relatively new phenomenon, and in many states, the law is still developing.

What about stepparent adoptions?

A stepparent adoption is one in which a child’s biological parent marries someone who wishes to adopt the biological parent’s child, and is able to do so because the other biological parent consents or because consent is unnecessary—for example, if the other parent has died or has had parental rights terminated.

If the other biological parent does not consent to the adoption, the child cannot be adopted by the stepparent unless a court first finds that the biological parent is unfit.

I adopted my current wife’s children from her first marriage (their biological father has never been a part of their lives). My wife and I are now getting divorced. What will happen to my relationship with the kids?

Your divorce will not affect the adoption. You will continue to have all the rights and responsibilities of a biological parent, including the right to seek custody  or visitation  and a duty to support the child.

Can a single person adopt a child?

Yes. Many states allow single persons to adopt, although some agencies strongly prefer to place children with married couples. Single people may participate in foster care, a temporary arrangement for children who cannot live safely with their birth families. In some cases, a child in foster care may become available for adoption.

My family is stationed in Europe and we would like to adopt a child from the country where we currently live. Is this possible?

Likely yes. When adopting a child from a foreign country, you enter into a private legal matter with a foreign court. You must comply with the rules of that foreign court. The protections of American courts will not apply to your family.

You must also make sure that you follow the immigration laws and applicable state law when returning to the United States with your adopted child. In most cases, a court will recognize a foreign adoption decree; however, the legality of your adoption can be challenged if you don’t have a written decree. If that is the case, you will have to ask your state to allow you to “readopt” the child.

When considering adopting a child from a foreign country, you should always use a licensed and reputable adoption agency or attorney. There are a numerous stories about fraudulent adoption services. To avoid being victimized, contact your home state’s department of child and family services or a local bar association. Because this is a rapidly changing area of law, ensuring that you have the best advocates working on your behalf can prevent lost time, money, and possible heartache.

Will the military help servicemembers and their families adopt?

Yes. You may be eligible to receive up to $2,000 per adopted child as reimbursement for reasonable and necessary adoption expenses (not to exceed $5,000 per year if adopting more than one child). Outside of military-specific support, adopting servicemembers may also be eligible for the Adoption Credit offered by the Internal Revenue Service. The IRS has more information about this credit and how to apply for it.