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Summary

Adoption in the US is mostly governed by state law, although federal constitutional principles and limited federal statutes may come into play.  General features of adoption law that are common across states include the complete vesting of parental rights with the adoptive parents, the requirement of consent, the best interests of the child standard, the confidential nature of adoption proceedings, and the permanent nature of adoption. 

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Introduction

Adoption is a legal process by which “a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person.”[1]

In the United States, apart from limited federal constitutional and statutory law, adoption is controlled by state law.  While uniform adoption acts have been proposed for the states, only a few states have adopted them.[2]  State law varies in many particulars, but general features of adoption law that are common across most states in the US are described below.

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Federal Law Relevant to Adoption

While adoption is mostly a matter of state law, there is a limited amount of federal law relevant to adoption.

Federal Constitutional Law

Under the Due Process Clause of the Fourteenth Amendment to the US Constitution, the Supreme Court has held that natural parents have a fundamental liberty interest in the care, custody, and management of their children.[3]  In light of this, decisions in state proceedings to terminate parental rights must be based on clear and convincing evidence; findings based on a preponderance of the evidence standard are insufficient.[4]

Under the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court found unconstitutional a state law that differentiated between the unwed mother and the unwed father of an illegitimate child with respect to their right to consent to the child’s adoption, where the father had shown a significant paternal interest in the child.  The Court ruled that there was no substantial relationship between the law’s gender-based discrimination and the state’s interest of providing for the well-being of illegitimate children, and therefore the discrimination was impermissible under the Equal Protection Clause.[5]

Federal Statutory Law

A few federal laws promote, support, or in some cases regulate state adoption and foster care efforts.  For example, the Federal Adoption Assistance and Child Welfare Act of 1980 provides for federal funding to be distributed to qualifying state foster care and adoption assistance programs.[6]  The Adoption and Safe Families Act of 1997 promotes state programs encouraging the adoption of children in foster care.[7]  The Indian Child Welfare Act of 1978 establishes standards for the adoption and foster care of Indian children.[8]

Within the broad parameters of federal law, however, states have wide latitude to structure laws regarding adoption.

Principles of State Adoption Law

While state adoption laws are not uniform, some common principles that all US states recognize can be identified.

Parental Rights and Responsibilities Vest with Adoptive Parents

Adoption severs the legal relationship of adopted children with their biological parents, and adopted children become, for all legal purposes, the children of their adoptive parents.[9]  The adoptive relationship creates new legal rights and obligations under a variety of federal and state laws, including tax laws, social security, inheritance, and others, while rights and obligations under such laws with respect to the prior parents are usually extinguished.[10]  Adoption is distinguishable from proceedings such as custody and guardianship in that adoption endows the adoptive parents with the status of legal parentage, while the other types of proceedings do not.[11]

Necessity for Consent

In all states, adoption proceedings require the biological parents to voluntarily and knowingly consent to the adoption, except where this consent requirement is waived or forfeited.  An “essential characteristic [of US adoption law] is that adoptive relationships will not be created at all unless a court is confident that, absent waiver, voluntary and informed consents have been obtained from the biological parents[, or] appropriate grounds exist to waive the right of the parent to consent.”[12]

All states have statutes requiring that the birth mother consent to the adoption of her child.[13]  The consent of married fathers is also typically required.[14]

As to unmarried fathers, the Supreme Court has ruled, at least with respect to those that have manifested significant paternal interests in their children, that a state may not deny them the right to consent to an adoption while granting that right to unwed mothers.[15]  In response to this ruling, states have addressed the rights of unwed fathers in adoption proceedings in a variety of ways.[16]  For example, approximately half of the states have established putative father registries, to allow unwed fathers to register their contact information in order to obtain notice of adoption proceedings.[17]

Children that have reached a certain age, typically between ten to fourteen years depending on state law, must also consent to the adoption.[18]

The right to consent may be waived or forfeited through abandonment, judicial termination of parental rights, adjudication of incompetence, and the like.[19]

Best Interests of the Child

In all states, the determination whether prospective adopters are suitable parents is based on a finding that an adoption is in the best interests of the child.[20]  The law requires the focus to be on the interests of the child, rather than the interests of the birth parents, the adoptive parents, or anyone else.  An adoption is generally not final until a probationary period of a certain number of months has elapsed, during which time the question of the best interests of the child may be evaluated.[21]  A court will generally rely on investigations conducted by child welfare professionals in determining whether a placement is in the best interests of the child.[22]

Confidential Nature of Adoption Proceedings

Adoption proceedings and records are confidential in nature.  Adoption proceedings are closed to the public.  The records of the adoption proceeding are sealed and may not be opened except upon a judicial finding of good cause, or in some states upon the mutual consent of all parties.  The child’s original birth certificate is sealed, and a new one is issued containing only the child’s adoptive name.[23]

Traditionally, biological parents of a child who was placed for adoption were unaware of the identity of the adoptive parents, and vice versa.  In recent decades, the law of many states has become more accommodating of efforts to open sealed adoption records and original birth certificates, and of agreements allowing ongoing contact between adoptive and birth families following the adoption decree.[24]

Permanent Nature of Adoption

Upon finalization of the adoption, the adoptive parents obtain the same rights and responsibilities with respect to the child that biological parents typically have, and the parental relationship is not subject to revocation.  After a period specified by each state’s law, the adoption proceeding cannot be reopened, absent fraud or significant procedural irregularity; incompatibility or the second thoughts of any party cannot serve as the basis of reopening the proceeding.[25]

Luis Acosta
Senior Legal Information Analyst
May 2013

 

  1. N.Y. Dom. Rel. Law § 110 (McKinney 2010). [Back to Text]
  2. Nat’l Conference of Comm’rs of Unif. State Laws, Unif. Adoption Act (1969), http://www.uniform laws.org/shared/docs/adoption/adoption69.pdf; Nat’l Conference of Comm’rs of Unif. State Laws, Unif. Adoption Act (1994), http://www.uniformlaws.org/shared/docs/adoption/uaa_final_94.pdf.  The 1969 Act has been adopted in five states. Legislative Fact Sheet – Adoption Act (1953)(1969), Unif. Law Comm’n, http://uniformlaws.org/LegislativeFactSheet.aspx?title=Adoption%20Act%20%281953%29%281969%29 (last visited May 8, 2013).  The 1994 Act has been adopted in one state (Vermont).  Legislative Fact Sheet – Adoption Act (1994), Unif. Law Comm’n, http://uniformlaws.org/LegislativeFactSheet.aspx?title=Adoption%20Act %20%281994%29 (last visited May 8, 2013).  [Back to Text]
  3. Santosky v. Kramer, 455 U.S. 745, 753 (1982).  [Back to Text]
  4. Id. at 768–69. [Back to Text]
  5. Caban v. Mohammed, 441 U.S. 380, 390 (1979).   [Back to Text]
  6. 42 U.S.C. § 672 (2006). [Back to Text]
  7. 42 U.S.C. § 629 (2006). [Back to Text]
  8. 25 U.S.C. § 1902 (2006).  See also Sanford N. Katz & Daniel R. Katz, Adoption Laws in a Nutshell 275–80 (2012) (listing other federal laws affecting state adoption and foster care practices).  The US has also ratified and enacted implementing legislation on the Hague Convention on Intercountry Adoption.  Id. at 281–85; 42 U.S.C. §§ 14901–54 (2006). [Back to Text]
  9. Joan Heifetz Hollinger, Adoption Law and Practice § 1.01[1] (2012).  In some states a child’s biological parent may use adoption to be recognized as a legal parent, such as a biological father not married to the birth mother using the adoption process to become the child’s legal father.  Id. [Back to Text]
  10. In a small minority of states, adopted children inherit from both their adoptive and biological parents following the adoption decree.  Katz & Katz,  supra note 8, at 226–36. [Back to Text]
  11. Hollinger, supra note 9. [Back to Text]
  12. Id. § 1.01[2][a]. [Back to Text]
  13. Sanford N. Katz & Daniel R. Katz, supra note 8, at 40–51 (listing consent statutes of the fifty states and the District of Columbia). [Back to Text]
  14. Hollinger, supra note 9, § 2.04[1]. [Back to Text]
  15. Caban v. Mohammed, 441 U.S. 380, 390 (1979); see also Lehr v. Robertson, 463 U.S. 248 (1983) (where unmarried father lacks significant custodial, personal, or financial relationship with child, there is no constitutional right to notice of adoption proceedings). [Back to Text]
  16. Hollinger, supra note 9, §§ 2.04[2][c]–2.04A[9].  “The most perplexing dilemma . . . is how to devise procedures which enable those fathers who are interested in their children to have a role in adoption proceedings while simultaneously expediting the termination of the rights of those fathers who show no interest.”  Id. § 2.04[2][c]. [Back to Text]
  17. Id. § 2.04A[7]. [Back to Text]
  18. Id. § 2.08. [Back to Text]
  19. Id. § 2.10[1]. [Back to Text]
  20. Id. § 4.01[1]. [Back to Text]
  21. Id. § 1.01[2][b].  Probationary periods last between three months to a year, depending on state law. [Back to Text]
  22. Id. §§ 1.01[2][b] & 4.12. [Back to Text]
  23. Id. § 1.01[2][d]. [Back to Text]
  24. Id. §§ 13.02, 13-A.01 to 13-A.04 (listing states with various procedures for obtaining identifying information from sealed adoption records), & 13-B.01 to 13-B.03 (discussing and listing states with statutes that recognize and allow enforcement of “open adoption” or post-adoption contact agreements between birth and adoptive families, and states that recognize “non-binding open adoption” agreements).   [Back to Text]
  25. Id. § 1.01[2][e]. [Back to Text]

 

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Last Updated: 07/02/2014