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Cooperative Adoptions: Contact Between Adoptive and Birth Families After Finalization State Statutes Series 2003 Author(s): National Adoption Information Clearinghouse Year Published: 2003

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
Administration on Children, Youth and Families Children's Bureau

NATIONAL ADOPTION INFORMATION CLEARINGHOUSE
330 C Street, SW, Washington, DC 20447, (703) 385-3206
Outside Metropolitan Area: (888) 751-0075
naic@caliber.com http://naic.acf.hhs.gov

This publication is a product of the National Adoption Information Clearinghouse. NAIC is a service of the Children's Bureau, Administration of Children and Families, U.S. Department of Health and Human Service.

Cooperative Adoptions: Contact Between Adoptive and Birth Families presents citations and text of State laws related to formalized open adoption agreements. While every attempt has been made to be as complete as possible, additional information on this issue may be in other sections of a State's code as well as in agency regulations, case law, and informal practices and procedures. Readers interested in interpretation of specific statutory provisions within an individual jurisdiction should consult with professionals within the State familiar with the statutes' implementation.

Cooperative Adoptions: Contact Between Adoptive and Birth Families After Finalization

Cooperative adoption or adoption with contact are terms that refer to arrangements that allow some kind of contact between adoptive families and members of the adopted child's birth family after the adoption has been finalized. These arrangements can range from informal, mutual understandings between the birth and adoptive families, to written, formal contracts. The written agreements specify type and frequency of contact and are signed by the parties to an adoption prior to finalization. The modes of contact can range from an exchange of information about the child between adoptive and birth parents; to the exchange of cards, letters, and photos; to actual personal visits with the child by birth family members.

Adoption with contact agreements have become more prevalent in the last decade. Growth is due to many factors, the most significant being that the majority of adoptions in the U.S. today are non-infant adoptions. Adoptions more typically involve older children, such as stepchildren and children adopted from foster care. These children, because of their age, frequently have attachments to one or more birth relatives that would be in some way beneficial for them to maintain. In addition, contact with birth relatives can be an ongoing resource to the adoptive parents for information about the child's medical, social, and cultural history.1 In general, the law does not prohibit post-adoption contact. Since adoptive parents have the right to decide who may have contact with their adopted child, they can allow any amount of contact with birth family members they choose, and such contacts are often arranged by mutual understanding without any formal agreement.2

However, many adoption professionals feel that a written contractual agreement3 between the parties to an adoption can clarify the modes and frequency of contact and thereby minimize conflicts. In the absence of statutory guidance, however, problems have arisen. Unless sanctioned by law, agreements for post-adoption contact are purely voluntary and typically cannot be enforced in court. There is also some concern that the existence of an agreement might be used as grounds to set aside an adoption in the belief that an agreement for post-adoption contact is inconsistent with the severance of all rights of the birth parents that is the traditional consequence of relinquishment for adoption.4 Increasingly, adoption professionals have looked to State legislatures to provide the legislative mechanisms for drafting and enforcing post-adoption agreements.


Guidelines for Legislation

The issue of adoption with contact was addressed in 19995 by a group of experts convened by the Children's Bureau of the U.S. Department of Health and Human Services. In their publication, Guidelines for Public Policy and State Legislation Governing Permanence for Children, the experts recommended that States adopt legislation allowing adoption with contact agreements that included these key provisions:

Adoption is irrevocable, and the birth parent's voluntary relinquishment may not be set aside, even if the post-adoption agreement is modified, set aside, or parties fail to comply.

The court may approve the agreement only if all parties, including a child over the age of 12, agree on its provisions, and the court finds the agreement is in the best interests of the child.

The court may approve post-adoption contact ranging from occasional exchanges of cards, photographs and information to regular personal visits, in whatever level of detail the parties agree to and the court deems appropriate.

Any party to the agreement may petition the court to modify the agreement, order compliance, or to void the agreement.

The court may order compliance, modify, or void the agreement only if the parties agree or circumstances have changed, and any action is in the best interests of the child.


Statutes Permitting Enforceable Contracts

Approximately6 18 States (Arizona, California, Connecticut, Florida, Indiana, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Dakota, Vermont, Washington, and West Virginia) currently have legislation allowing written and enforceable adoption with contact agreements. In many of these States, the statutes incorporate the substance of the language recommended by the Guidelines, while in other States (notably New York and South Dakota),7 provisions pertaining to the contents and enforcement of the agreements are not specified.

In most of these States, an agreement for adoption with contact can potentially be permitted for any adoptive child as long as the type and frequency of contact is deemed to be in the child's best interests. Some States, such as Connecticut, Nebraska, and New York, limit the application of agreements to children in foster care. Indiana limits enforceable contact agreements to children ages two and older. For children under age two, non-enforceable agreements are permitted as long as the type of contact does not include visitation.

Most statutes permit post-adoption contact for birth parents; however, some States also allow other birth relatives, including grandparents, aunts, uncles or siblings, who have significant emotional ties to the child, to be included in the agreement. Minnesota permits foster parents to petition for contact privileges; for Indian children, members of the child's tribe are included among the eligible birth relatives. California, Indiana, Maryland, and Massachusetts have separate provisions for sibling visitation.

All parties wishing to be included in the agreements must agree in writing to all terms, which in most States are subject to court approval. Disputes over compliance and requests for modification of the terms must also be brought before the court. Five States, Arizona, Connecticut, Louisiana, Minnesota, and Oregon, require parties to participate in mediation before petitions are brought before the court. In no case can disputes over the post-adoption agreement be used as grounds for setting aside an adoption or relinquishment of parental rights.


Laws in Other States

In most other States, the statutes are silent about the issue of post-adoption contact. Approximately eight other States do address the issue, but do not provide for enforceable agreements. For example, Alaska's statute merely states that contact agreements are not prohibited. Nevada allows visitation to any person who had established a legal right to visit the child prior to the adoption.

Maryland allows agreements that have the mutual consent of both the birth and adoptive parents, but has no provision for enforcement. North Carolina also permits agreements by mutual consent, but specifies that they are not enforceable and failure to comply is not grounds to invalidate consent to the adoption. Ohio and South Carolina specifically state that mutual agreements for contact are non-binding and non-enforceable. Missouri and Tennessee leave decisions about contact and visitation with birth relatives to the sole discretion of the adoptive parents.

This publication is a product of the State Statutes Series prepared by the National Clearinghouse on Child Abuse and Neglect Information. While every attempt has been made to be as complete as possible, additional information on these topics may be in other sections of a State's code as well as agency regulations, case law, and informal practices and procedures.


The Information on this page was provided by The National Clearinghouse on Child Abuse and Neglect.

The National Adoption Information Clearinghouse are services of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services. The mission of the Clearinghouses is to connect professionals and concerned citizens to timely and well-balanced information on programs, research, legislation, and statistics regarding the safety, permanency, and well-being of children and families.

A Service of the Children's Bureau, Administration for Children and Families,
U.S. Department of Health and Human Services

For more information, contact:
National Adoption Information Clearinghouse
Children's Bureau/ACYF
1250 Maryland Avenue, SW
Eighth Floor
Washington, DC 20024
Phone: 703.352.3488 or 888.251.0075
Fax: 703.385.3206
Email: naic@caliber.com


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