Who May Adopt Under the Law

Prospective adoptive parents sometimes have a familial relationship with the child they are seeking to adopt, or with one of the biological parents, and in other cases they do not. An adoptive parent’s status as either a family member or non-family member of the child will impact the adoption process in different ways.

Adoptions by Family Members

Most domestic adoptions involve family members serving as adoptive parents. When a family member adopts another family member, this is called “kinship adoption.” Some jurisdictions will also recognize “fictive kin” under this umbrella, which include family friends or other people with a close but non-biological relationship to the child or family.

Kinship adoption is usually the first choice when the child cannot continue to be parented by their biological parent(s). For example, if children are removed from their parents due to concerns of abuse or neglect, social services will first try to find a suitable kinship placement for the children. Similarly, if a parent dies or is going to be incarcerated for a long time, often relatives will step in to adopt the child.

One of the biggest differences between family member adoption and non-family member adoption is that states must give family members preference over non-family members. In many cases, states are required to look into the child’s background and identify potential kinship care placements before the child can be placed in foster care.

As with non-family member adoptions, the state or adoption agency will do home studies, background checks, and other screening processes to make sure that the relative is a safe placement for the child. A relative cannot formally adopt a child unless the birth parent or parents give consent or the rights of the parent(s) have been terminated.

One of the biggest benefits of family member adoption is that the child may already have a relationship with the adoptive parent(s), so the child may feel more comfortable with them. The birth parent(s) may have a relationship with them as well, and may have more insight as to whether they agree with the parenting style of the adopting relative(s). Having a relative serve as the adoptive parent also may allow birth parent(s) to have continued contact with the child even after the adoption is finalized, depending on the circumstances.

In addition, relative placement can be a good choice for birth parents who plan or hope to parent later. In these scenarios, the “adoptive” parents can potentially function more as temporary guardians than permanent parents. This may be the best scenario for someone who cannot parent now due to incarceration, addiction, or other circumstances.

However, there may also be downsides to relative placements. It may difficult for birth parents to see their child frequently and/or see them in a parental relationship with another adult in their family. In other cases, there may be no suitable relative to adopt or take guardianship of the children.

Adoptions by Non-Family Members

Of course, non-family members can adopt children as well, as long as there are no suitable relative placements or the birth parent prefers the child to go to non-relatives. A potential challenge for non-family members who are trying to adopt a child is that if a suitable family member decides to adopt and has the consent of the biological parent(s), the state will most likely place the child with the family members. This is more likely in adoptions from foster care because the state must sometimes actively look for kinship placements. Another reason why this is more likely to happen when adopting from foster care is because there may be a long period of time during which the foster parents have guardianship of the child before the parental rights are surrendered or terminated. As a result, there is a greater period of time before the adoption is finalized in which circumstances can change.

Last reviewed October 2023