What is Adoption?
Adoption is the legal process of an adult becoming the legal guardian of a child, vesting in them all the rights and responsibilities of a birth parent. An adoption forms a legal, formal relationship between an adult and a child.['1]
What Laws Govern Adoption?
Adoptions are largely governed by state laws, although some federal policies and regulations impact them. The U.S. Constitution does not address adoption or grant it as a right, so it is up to states to determine who can adopt and how. While state laws vary, certain aspects of the law are the same across all states:[footnote num=”‘2″]
- All parental rights go to the adoptive parents.
- The biological parents must consent unless they have forfeited their parental rights.
- The best interests of the child must be prioritized in adoptions.
- Adoption proceedings are confidential.
- Adoption is permanent.
Some federal laws, statutes, and constitutional amendments impact adoptions in all states:['2]
- The Due Process Clause. The Fourteenth Amendment gives parents a right to have an interest in the care and management of their children. This means that states must show clear evidence when deciding to terminate parental rights.
- The Equal Protection Clause. The same amendment gives equal parental rights to mothers and fathers when the parents are unwed. If the father has shown adequate interest in his child, his consent must also be obtained for an adoption.
- The Federal Adoption Assistance and Child Welfare Act. This law, passed in 1980, gives federal funding to state foster care and adoption programs that meet qualifications.
- The Adoption and Safe Families Act. Passed in 1997, this law benefits state programs that promote the adoption of foster children.
- The Indian Child Welfare Act. Since 1978 this law has regulated the adoption of Native American Children.
What Are the Types of Adoption?
Adoption is not a single, simple process. There are many ways to go about adopting a child and several different types:
- Private adoption
A private, or independent, adoption occurs when the birth mother selects adoptive parents. The two parties agree on terms, usually with the help of lawyers. Most states allow private adoptions.
- Agency adoption
Agencies are public or private groups that facilitate adoptions. A birth mother can place her child with the agency. The agency selects the adoptive parents and handles all the details.
- Identified adoptio
This is a combination of the first two types. A birth mother identifies, or selects, adoptive parents and then allows an agency to take over the process of formalizing the adoption.
- Foster care adoption
Many children live in foster care and can be adopted from the system. In most cases, it is the foster parents who adopt them.
- Open and closed adoption
Traditional adoptions are closed, meaning no information is shared between the birth and adoptive families. Open adoptions are increasingly common. Both sides agree during the adoption process on how much information will be shared and how much contact is allowed.
- Stepparent or relative adoption
These are usually simpler processes when a family member such as a grandparent or a stepparent wants to adopt a child.
- Same-sex adoption
Most states allow for same-sex adoption. In some states, a couple may be allowed to adopt together. In others, one parent can adopt, and the other may then adopt a child as a stepparent.
- International adoption
Adoptive parents may go to another country to adopt a child. They must meet requirements both in that country and in their home state. They must also get an immigrant visa, but the child becomes a U.S. citizen upon entering the country.
- Adult adoptions
Most states allow an adult to be adopted if there is an age difference of at least ten years. This is most commonly done when stepparents adopt a stepchild as an adult for sentimental reasons or to ensure inheritances can proceed upon their deaths.
Who Can Adopt?
State laws determine eligibility requirements for adoption, but most adults are eligible. Factors such as marital status, disability, income, and sexual orientation do not necessarily make a person ineligible. Basic eligibility requirements standard in all states include the age of the adoptive parents. Some states require a minimum age difference between adults and adoptive children.
A U.S. Supreme Court ruling from 2017 overruled some state’s restrictions on adoption. For instance, Florida and Mississippi have rules against allowing gay adults to adopt, but the decision overrules that. Utah bars adoption by couples not legally married, but again, that law is overruled.
In general, state laws allow for any fit parent to adopt. Be aware that private adoption agencies may set their own requirements for adoptive parents. For instance, a Catholic agency may not adopt to same-sex parents. Whether or not that is constitutional is currently under consideration by the Supreme Court, pending a decision in Fulton v. City of Philadelphia.['3]
Who Can Be Adopted?
States outline who can adopt and also who can be adopted. Twenty-nine states allow adults to be adopted. A few states require adults between 18 and 21 to petition the court to be adopted, while in other states, adult adoptions are not allowed.
Some states require that a child be resident in the state when an adult files the petition for adoption. Iowa has a stricter requirement. The child must have lived in the state with the adopter for at least 180 days.
Adoption can be quick and easy, but it can also be a long and difficult process. The system intends to put the best interests of a child first and foremost in all proceedings. If you are thinking of adopting a baby, a foster child, or a family member or stepchild, it’s best to work with an adoption lawyer.