Getting Acquainted with Adoption Contracts: Elements through Considerations Worth Mentioning
What Constitutes an Adoption Contract?
An adoption contract is an agreement between a biological parent or parents and an adoptive parent or parents that sets out the terms of the agreement. In an adoption, there are at least three parties, if not more. There is the child, the adoptive parents, and a biological parent and/or biological parents. An adoption requires the consent and relinquishment of the biological parent or parents and a contract or agreement with the biological parent or parents about the adoption is the adoption contract.
An adoption contract performs some very important functions in assisting the adoptive parents by setting out requirements, obligations , and responsibilities within the adoption. The contract will reflect the benefits, risks, and dangers in an adoption situation. Adoption contracts can be used in domestic adoptions, international adoptions, and foster care adoptions. These contracts will differ based upon the type of adoption that it is used in and whether the individual has counsel.
Adoption contracts or agreements can be very detailed or rather simple and to the point. The specific terms and clauses in the adoption contract will depend upon the type of adoption it is used in, the specific proposed adoption situation, state law, local customs and practices, and the preference of the particular clients involved.
Key Features of Adoption Contracts
When you enter into a contract to adopt a child, there are some essential components that have to be present for the contract to be considered valid. Adoption contracts can be simple and lightweight or heavy on specifications and stipulations. Some essential components of adoption contracts include the consent of the biological parents to place the child for adoption, the fees and responsibilities associated with the adoption, whether the adoption is open to continued contact with the biological parents or if it will be a closed adoption with no future contact, whether the adoptee’s birth certificate will be changed and to reflect the new name and whether the adoptive parents are permitted to make claims under their insurance policies for dental and medical care as well as parenting standards and obligations such as religious training and education. While some states demand that all requirements for adoption contracts be in writing, other states allow for verbal contracts. Even in states where verbal contracts are legal, it is often wise to provide a written contract just to memorialize the agreement between the parties. Even if an adoption may not ultimately require a written contract, they are often written to help avoid disputes.
Responsibilities and Rights Under Adoption Contracts
The adoption contract cannot be anything that you have scratched out on a napkin. To be valid, it must comply with the law in your state and we will make sure that it does. When carrying out an adoption, each of the parties has certain obligations at law. These obligations can be complicated but outlines are provided below. For the adoptive parents (also known as the adopting parents), they must deal with the biological parents in good faith. The adoptive parents also have the legal obligation to support the child in their care and raise the child to a high standard (again according to the laws of each state). Adoptive parents must also comply with the law when adopting a child. This will often involve obtaining consent from biological parents and/or other legal requirements (such as a home study) and comprehensive background checks. It is also a wise idea to ensure that you are working with an adoption agency, adoption lawyer, or adoption specialist. They can handle some of the more mundane tasks for you and ensure that you are complying with the provisions of the law.
The biological parents should act honestly when giving their consent for the adoption. They should also be prepared to hand over custody and parental obligation for their biological child. Again, biological parents may also want to consider legal advice with their adoption. The child will generally not have any specific legal obligations relating to an adoption contract. However, it is essential that the adoption is carried out in good faith by all people involved. Of course, there are other common legal issues that may arise when dealing with an adoption contract. We will now introduce you to the issues you may find yourself in if the adopted child does not actually want to be adopted, the parental rights of the biological parents, and whether the child has any legal rights to the assets of the adoptive parents.
Drafting a Legally Enforceable Adoption Contract
Adoption contracts are a legal agreement between the adoption agency and the client. In essence, they, like other contracts, spell out terms and conditions of the relationship. While there are many types of adoption, this article focuses on adoption contracts that are used with agency adoptions.
A contract created for an agency adoption must have certain elements in order to be enforceable. 5) The promised exchange of items of value. It is important that the contract not violate any state or federal laws. Also , the adoption contract must have a definite purpose. For example, the agency might promise to refer patients to the adoptive family.
- The parties’ names
- Identification of the subject matter
- The terms of the agreement
- An expiration date
- Signatures of all parties
Because adoption contracts require a complex understanding of statutory law and the administrative procedures of your state, it is best to seek the guidance of an experienced lawyer when drafting and signing an adoption contract.
Common Concerns and Challenges Associated with Adoption Contracts
Common challenges and disputes that can arise when adoption contracts are not honored include contested adoptions, breaches of contract, claims for damages, and even rescission of the transaction. These issues can be complex and emotionally charged for all parties involved. In contested adoptions, one party may seek to challenge the legality of an adoption in court and ask that a birth parent(s) or prospective adoptive parent(s) be awarded custody. Breach of contract claims arise when one party fails to uphold their end of the contract. Damages can awarded as compensation for any financial loss caused by the breach. In some cases, rescission of the contract is ordered, which has the effect of making the entire transaction invalid and both parties are returned to their original position as if the adoption never occurred.
Contracts for open adoptions, also known as ongoing contact agreements, are often entered into by the parties in lieu of a fully disclosed adoption. There are various types of open adoptions including semi-open and fully open adoptions. A completely closed adoption is one where there is no contact or sharing of information whatsoever between the birth parent and adoptive parent after the adoption. In a semi-open adoption, the parties agree to have some contact while maintaining a certain amount of openness between the parties. Fully open adoptions on the hand, involve the exchange of identifying information such as phone numbers, email addresses, and places of residence.
In general, courts do not recognize open adoption agreements as legally binding documents. In California for instance, the California Family Code specifies what information a contact agreement must contain and that they are not enforceable unless approved by the court in a final adoption decree. Some states allow for the modification or nullification of an open contract but only through a court order. In other states, such as North Carolina, contact agreements are not enforceable and cannot be modified or nullified. Because open adoption contracts are not legally binding, disputes can arise. When an open adoption contract is not honored, courts may dismiss the contract and grant the other party custody of the minor child. However, the contact agreements are still a violation of the law in some states and states differ in their enforcement of these contracts.
Other types of adoption contracts, such as kinship or step-parent contracts, are sometimes enforceable in certain circumstances but not in others. For instance, when kinship adoptions are completed through a state-recognized agency, the agency often requires contracts to be signed by the adopting parent(s) and the birth parent(s) before they will finalize an adoption. The agency may ask for a post-placement contract, a contract that lasts up to six months. Post-placement contracts usually require the parents to continue contact with each other while the child is placed in the home and legal adoption is finalized. Post-finalization contracts are generally longer in duration, anywhere from three months up to several years. Many of these adoptions are mediated to completion and contracts are common. However, these contracts are not enforceable in many states unless they are approved by a judge. New Jersey courts have held them to be unenforceable, as well as informal kinship agreements. Disputes have led kinship or step-parent adoptions to be reversed in certain states. If a pre-placement contract was signed and used to help facilitate an adoption, it may be enough to uphold the adoption. Other times, the courts have held that these contracts were invalid and enough evidence to support a complete reversal of an adoption. Because many agencies require pre-placement contracts to be signed by the birth parent(s) and adoptive parent(s), the practice is legal and not in question in every state.
Adoption Contract Samples and Resources
If you are considering adoption, there is a traditional adoption contract template periodically free to download online from an advocacy group. While you may find fillable adoption forms available as free downloads, we strongly recommend that you obtain an adoption contract sample from a qualified adoption lawyer or law office so that all the legal questions will be answered. Adoption laws vary by state and jurisdiction , so it is essential that your specific adoption contract is properly drafted to comply with all relevant local laws and court guidelines.
Using a boilerplate adoption contract template without having it reviewed or revised by a legal professional is very risky, as it may not be enforceable in the state where the contract was signed. You should also have the contract reviewed by your personal attorney if you believe there will be any complication with the adoption process.