Legal Complexities of Adoption

Adoption is exciting, but also overwhelming. The more information you have, the more equipped you will be to handle the situation. This article addresses several frequently asked questions about the legal aspect of the adoption process.

Adoption laws vary by state. Consult a local adoption law attorney about your options and the legal requirements to adopt in your state.

What Is Adoption?

“Adoption is a legal process where the parental rights of a child’s biological parents are terminated, and a new parent-child relationship is established,” says Shelley B. Ballard, an adoption lawyer in Evanston, Illinois, whose firm handles many types of adoption, including domestic, international, and foster care adoptions.

The process of adoption creates a legal relationship between the adoptive parent and the child and terminates any legal rights between the child and their biological or birth parents.

Am I Eligible To Adopt?

Eligibility criteria for adopting depend on the type of adoption and state law. Factors include the adopting parents’ age, marital status, income, health, and criminal background.

Agencies asses all of these factors and more to ensure the child’s best interests. An attorney can help you determine whether you meet the requirements for adoption under your state’s laws.

Are Birth Parents’ Rights Terminated in an Adoption?

Yes, the birth parents’ rights must be terminated so that the adoptive parents can become the child’s sole legal parents. Depending on the circumstances of the adoption, terminating parental rights may be voluntary or involuntary.

The state handles the termination in most foster care cases, Ballard says. “Sometimes, the birth parents sign off on it, and sometimes their rights are involuntarily ended. By contrast, in most infant domestic adoptions, termination is almost always voluntary. We may have an unknown parent, usually the father, whose rights may have to be involuntarily terminated, but typically in this type of adoption, everyone has the same goal in mind.”

When children come to the United States through international adoption, “Their parents’ rights have already been terminated; often they’ve been abandoned,” Ballard notes.

“Finally, one area where there tends to be more contested adoptions is relation cases, particularly stepparent adoptions. There’s usually a lot of acrimony between the biological mother, who’s married to the child’s stepfather, and the biological father, whose rights are going to be terminated so that the stepfather can become the child’s legal parent.”

Contested adoptions can be very difficult and expensive. “I try to discourage those if my client doesn’t have a good case,” says Ballard.

What Are the Most Common Types of Adoption?

Adoptions take many forms and can address parenting needs in many situations. Here is an overview of some of the main types:

1. Open and Closed Adoptions

Most private adoptions are at least semi-open. Semi-open adoption means there is some level of contact between the biological parents and adoptive parents. The amount of information exchanged in an open adoption depends on what the parties want to share.

In a closed adoption, full information about the birth mother is withheld from the adoptive parents, and vice versa. However, completely closed domestic adoptions are rare nowadays. Ballard adds that even if the parties want a closed adoption, complete confidentiality is not guaranteed, given DNA testing.

For those wanting information, state voluntary registries and confidential intermediary laws like the one in Illinois help adoptees, birth parents, and adoptive parents find each other. Finally, information about parents may be available through third parties.

Regardless of whether you’re the biological parent or the adoptive parent, you will want to consider the level of openness you’re comfortable with.

2. International Adoption and Domestic Adoption

If you’re hoping to adopt a child from another country, you will need to follow any international treaty or agreement governing that country, such as the Hague Adoption Convention. Intercountry adoption will also involve domestic state statutes and federal laws, including immigration laws.

In Brian Esser’s Brooklyn office, new clients get an overview of the process, starting with the differences between domestic and international adoptions. International adoptions have shrunk from roughly 20,000 per year nationwide (in 2004) to about 1,500 in 2023. Many foreign countries have tightened their rules, raised their costs, and limited adoptions to older children or children with disabilities.

The costs of international adoptions, unsurprisingly, can be steep. Esser says the total cost can top $50,000. Domestically, some adoptive couples seeking a healthy infant go through private agencies that match the couple with a birth mother. Esser says rules vary state to state, and estimates the typical cost at $30,000 to $45,000. The average waiting period can range from two to seven years, according to Brett Kimmel, a family law attorney in Bedford, New York.

Domestic or national adoption is also governed by federal and state laws. This includes the Interstate Compact on Placement of Children (ICPC). the ICPC ensures children placed for adoption anywhere in the United States receive protection and support. It is important for adoptive parents to speak with an experienced attorney to make sure there are no delays in bringing their child home.

3. Stepparent Adoption

Stepparent adoptions share many of the same requirements as other adoptions. The main difference is that the rights of only one biological parent are terminated since the child remains with the other biological parent and stepparent.

This can create unique tensions and disagreements in the process. You will want to speak with a lawyer to make sure this process goes smoothly.

4. Foster Parent Adoption

Finally, foster parents can adopt the children in their care. These adoptions are generally handled through state agencies. Foster parents should speak with an attorney to understand the specific requirements of their state.

How Long Does the Adoption Process Take?

The complexity of an adoption case varies depending on the type of adoption. Plus, different types of adoption are complex for different reasons. With international adoptions, it’s the paperwork, says Ballard.

“For example, adoptive parents have to get a home study through the appropriate government-approved channels. They need to get signoff from the U.S. federal government and from the original country. And there’s international travel involved. It’s a lot of red tape.”

When it comes to domestic interstate adoption, Ballard says the difficulty comes from dealing with two or more states’ adoption laws. “We have to make sure we are taking the proper legal paths. Plus, there’s a process under the Interstate Compact on the Placement of Children that we have to comply with in order to get the adoptive family’s permission to bring the child to their home state. That process tends to be a little more involved.”

Given these complexities, how long does the adoption process usually take? Ballard says that with domestic infant adoptions, “The legal process usually takes around six months, and sometimes less, depending on the state. So, overall, I would say the process takes anywhere from nine months to a year.”

Of course, people may face various complications with domestic adoptions that prolong the process. Some adoptions take a couple of years or more, while international adoptions tend to take longer in general. To gauge how long your adoption may take, it’s necessary to consult with a lawyer or adoption agency about their specific process.

What Is the Home Study Process?

Of all the hoops prospective parents must jump through to adopt a child, one of the most stressful, according to Manhattan adoption law veteran Clifford Greenberg, is the home study.

The home study process is an evaluation conducted by a private or public agency that assesses a family’s fitness to adopt, explains Ballard. “The assessment typically includes the prospective adoptive parents’ education, a criminal background check, information about their medical backgrounds, any other children in the home, and their general readiness to adopt.”

A home study is necessary in almost all adoptions. It’s an important step in making sure a child is in a supportive and financially viable home. While some states don’t require it for related adoptions, many do. The agency that conducts the home study reports its findings, along with any red flags, to the adoption court.

Home studies are a bit different in international adoptions. The federal government approves agencies that can conduct international adoption home studies, Ballard adds.

How Are Adoptions Finalized?

“The court must be involved in every adoption,” says Ballard. “If you don’t have a court involved, then you haven’t established a legal parent-child relationship. Furthermore, in most cases, a new birth certificate will be issued after the adoption finishes. The previous certificate is sealed, and the new one will have the child’s new name with the adoptive parents as the legal parents. You can’t do any of that without a court order.”

Ballard adds that in some parts of the country, court hearings are virtual. “This makes the hearings less onerous than they used to be. And I hope it’s going to continue since it allows adoptive parents to invite friends and family from all over the place to the hearings. Some of these hearings have had 20 or 30 people who are Zooming in from all over the world, and it’s actually quite nice.”

How Can an Adoption Lawyer Help Me?

“I always tell folks that if they’re just signing up with an agency and expect a placement through an agency, they don’t necessarily need a lawyer until the child is home unless some strange issue comes up and they have questions about it,” says Ballard. By contrast, “If you’re doing a related adoption, you need to have your attorney from the beginning.”

Some parents try a DIY approach using social media, internet ads, or paying third-party services to provide a potential match. Ballard says to be wary of scams or potentially illegal arrangements. “I would say that if you’re going to be out there searching on your own, it wouldn’t be a bad idea to get an attorney before getting started so you can avoid those kinds of traps.”

Adoptive parents need to remember that biological parents can change their minds before the adoption becomes final. “That’s not uncommon,” Esser says. In some states, birth parents have months to change their minds. In New York, once the birth mother signs the surrender form, “The consent becomes irrevocable,” he adds. “It takes a minimum of three months before the adoption can be finalized.”

Public adoptions through foster-care agencies can be relatively low-cost, Esser notes. However, adoptive parents must be ready to welcome a toddler who may have suffered physical or emotional abuse and lived in multiple foster-care homes. “Public adoptions, by and large, are children who are in the state or county’s abuse and neglect system,” he says. “Private adoptions are voluntary placements.”

Why Hiring an Adoption Lawyer Can Be a Good Option, Cost-Wise

Of course, “People don’t like lawyers, and I understand that,” Ballard adds. “Plus, adoptions are expensive, and people are trying to allocate their money appropriately. It’s more expensive in some places than others — for example, it tends to be more expensive on the East and West Coasts than in the Midwest or Southern states.”

To avoid legal troubles and unnecessary costs, consult a lawyer who understands your state’s specific rules.

“For example, different states have different rules about whether, in a domestic infant adoption, you can pay financial assistance to the birth mother before, during, or sometime after her pregnancy,” says Ballard.

“Illinois allows it 120 days before birth and 60 days afterward; Indiana has a $4,000 cap; Wisconsin has a $5,000 cap; and Maryland doesn’t allow it at all. So, it’s very different depending on the state, and you absolutely don’t want to be caught doing something you think is a good idea, but that’s a crime under your state law.”

How Much Does an Adoption Attorney Cost?

Adoption is an expensive process. One area of cost is attorneys’ fees. The cost of a lawyer will depend on the lawyer — their experience, reputation, law firm — and the specific legal services you need.

Some attorneys may do certain services for a flat fee, while others work on an hourly basis or some other fee arrangement. It’s impossible to give prices across the board. However, lawyers should discuss attorneys’ fees and other costs with you upfront so you know what you’re taking on.

Greenberg says attorney’s fees for an adoption case in New York usually range from $2,500 to $4,000 for a typical agency adoption. That also covers help finding an adoption agency, fingerprinting, gathering tax and residence records, and engaging a social worker for the home study.

That says nothing of the emotional challenges.

“No matter how you look at adoption or frame it, loss is involved,” says Kimmel. “There is [for some parents] the loss of not conceiving your own child; the loss of perhaps not having a complete medical history for the adoptive child; the emotional scars that come with adoption — from both the parents’ and child’s perspective.”

However, Kimmel also sees the triumphs: “The joy of creating a family balances the losses or expenses or potential stresses involved.”

What Kind of Fee Structures Do Adoption Lawyers Use?

“Except for contested adoptions, I do my best to bill at flat rates,” says Ballard. “If it’s something that I’ve done a million times, I do that. Even if it’s in the pre-adoption timeframe, I’ll do a flat rate for a certain number of hours just because I want my clients to call if they have questions.”

However, not all adoption lawyers use flat rates. “A lot of attorneys in interstate and infant adoptions will be billing in many cases by the hour.”

Ultimately, attorney’s fees are something you should discuss with each attorney you meet with. Different lawyers will use different fee structures. Some arrangements will fit your financial situation better than others. To find the best fit, it’s always a good idea to check out a few lawyers before settling on one.

Find the Right Attorney for Your Needs

It is important to approach the right adoption attorney so you hire someone who can help you through the entire case. To do this, visit the Super Lawyers directory to look for an attorney who specializes in adoption cases.