Independent Adoptions & Legal Issues
The majority of adoptions of healthy infants take place as independent adoptions. Independent adoptions are also called private adoptions. The defining feature of this kind of adoption is the birth parent(s) giving custody of the child and parental rights directly to the adoptive parent(s) without the involvement of public or private agencies. This allows the birth parents to choose who adopts the child. Some independent adoptions may involve intermediaries, which are covered more fully in the section pertaining to facilitated adoptions.
Many birth and adoptive parents choose an independent adoption because it gives the parties more control over the process. It also allows children to be placed with the adoptive parents immediately or at birth. Further, it can give biological parents peace of mind to be familiar with and to have chosen the child’s adoptive family.
Regulations Governing Independent Adoptions
Some states do not allow private adoptions at all out of fear of “baby selling” and the risk of children being placed in unsafe homes. Other states may allow independent adoptions but require certain safeguards like disclosure of the money paid to birth parents or home studies completed by third parties. Private adoptions will often be especially scrutinized by the court, since there is no agency or social service oversight. The vast majority of states require birth parents and adoptive parents to be represented by separate attorneys. All states have rules and regulations about adoptions, and it is especially important for independent adoptions to comply with the letter of the law.
Consent to Independent Adoptions
In order for an independent adoption to take place, birth parents (with parental rights) must give consent. An issue that can sometimes arise is that the biological father is unknown or unable to be located. Biological fathers can have their parental rights terminated by the court for “abandonment” if they remain out of contact for a long enough period of time. Rarely, but notably, courts will reverse adoptions years afterwards in situations where a birth mother has concealed the identity of a child’s biological father. This can happen with any kind of adoption, but the lack of oversight involved in private adoptions makes them potentially more vulnerable to pitfalls of this nature than other types of adoptions might be.
Different states also have different time frames during which either birth parent may be able to revoke their consent to the adoption. This allows birth parents to change their minds after the birth of the child. The time period ranges from zero days (essentially no ability to revoke) to six months. Especially with independent adoptions, states are concerned about birth parents being bribed or coerced into placing their child for adoption.
Fees in Independent Adoptions
It is illegal to sell children. However, most states allow prospective adoptive parents to pay some of the birth mother’s expenses related to her pregnancy. Typically, the adoptive parents are also responsible for things like attorney fees and other necessary expenses to comply with the laws of the state. Most states have regulations that specifically give guidance on which of the birth mother’s expenses the potential adoptive parents are allowed to pay. Some states even require an accounting of the costs paid by the adoptive parent(s) before they will approve the adoption. Paying for unapproved costs will not necessarily make an adoption invalid. As long as the adoption is still in the best interest of the child, family courts will usually uphold the adoption.
Generally, courts will only approve “reasonable and customary” fees to be paid to the biological mother. No matter how much has been paid, the biological mother will never be required to relinquish her parental rights if she decides to parent. Further, paying for unapproved costs will not necessarily make an adoption invalid. As long as the adoption is still in the best interest of the child, family courts will usually uphold the adoption under these circumstances.
Potential Complications of Independent Adoptions
The nature of private adoptions may make some complications more likely. Birth parents seeking to place a child for adoption will not automatically be provided with counseling, as with an agency adoption. Also, private (un-facilitated) adoptions are only possible when there are adoptive parents who have been identified . Further, birth parents may not have the opportunity to learn as much as about the adoptive parents as in other types of adoption because there is often less research into their backgrounds and home life.
Some birth parents would like to remain anonymous, which is impossible with this kind of adoption. Furthermore, some of the consent issues above may come into play, especially if the biological father is not in the picture. Independent adoptions can also be expensive due to needing two attorneys and complying with other requirements.
