What Is Adoption Law?

Answering FAQs about the legal process of adoption

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Shelley B. Ballard

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Adding a child to your family through the process of adoption can be exciting, but it can also be overwhelming. For the biological parent of a child who is being adopted, it can be emotional, uncertain, and perhaps rewarding.

In either case, 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. With this information in hand, it’s wise to consult an adoption lawyer 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 adopted child and terminates any legal rights between the child and their biological or birth parents.

The court must be involved in every adoption. 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 listed as the legal parents. You can’t do any of that without a court order.

Shelley B. Ballard

Why Do Birth Parents’ Rights Have To Be Terminated?

In adoption, the birth parents’ rights must be terminated so that the adoptive parents can become the child’s legal parents. It’s a necessary legal step.

Depending on the circumstances of the adoption, termination of parental rights may be voluntary or involuntary.

For example, Ballard says that in most foster care cases, “termination is handled by the state,” and it tends to be a mix of voluntary and involuntary termination: “Sometimes, the birth parents sign off on it and sometimes their rights are involuntarily ended.”

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,” says Ballard.

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

Finally, “one area where there tends to be more contested adoptions is in related 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.”

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

What Are the Common Types of Adoption?

Adoptions take many forms and can address parenting needs for many situations.

For example, stepparents can adopt the biological children of their new spouse, foster parents can adopt the children in their care through foster care adoption, and new parents can adopt a child in their home city or another country. Individuals who are considering adoption may use private agencies, state adoption services, or pursue an independent adoption.

Here is an overview of the some of the main kinds of adoption:

Open and Closed Adoptions

Most private adoptions are at least semi-open, which means there is some level of contact between biological parents and adoptive parents. The amount of information exchanged in an open adoption can vary.

In a closed adoption, full information about the birth parents is withheld from the adoptive parents, and vice-versa. However, completely closed domestic adoptions are rare nowadays. And Ballard says that complete confidentiality often can’t be assured given the availability of DNA testing; state voluntary registries and confidential intermediary laws like the one in Illinois that helps adoptees, birth parents, and adoptive parents find each other; and the fact that information about parents may still 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.

International Adoption and Domestic Adoption

If you are a prospective adoptive parent hoping to adopt a child from another country, you will need to make sure you are following the requirements created by any international treaty or agreement.

For example, someone from the United States hoping to adopt a child from a country that is party to the Hague Adoption Convention will need to comply with the requirements of the agreement to successfully bring their child to the United States. In the cases of international or intercountry adoption, you will also need to consider any relevant state statutes or federal laws, including immigration laws.

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

Stepparent Adoption

Stepparent adoptions require many of the same things other adoptions require. However, in a stepparent adoption, only the parental rights of one biological parent are terminated. You will want to speak with a lawyer to make sure this process is handled appropriately, and everyone’s rights are protected.

Foster Parent Adoption

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

I would say that if you’re going to be out there searching on their own, it wouldn’t be a bad idea to get an attorney before getting started so you can avoid [legal traps and scams]… Consult with an adoption lawyer who understands your state’s specific rules.

Shelley B. Ballard

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—that is, adopting from one state to another—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 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 up to a couple 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?

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 required in almost all adoptions, says Ballard. It’s an important step in making sure that a child is getting placed 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 their findings, along with any red flags, to the adoption court.

Home studies are a bit different in international adoptions since they can only be conducted by agencies that are approved to do them by the federal government, 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 listed as the legal parents. You can’t do any of that without a court order.”

Ballard adds that in some parts of the country, such as Cook County, Illinois, court hearings are still being conducted over Zoom post-Covid. “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.”

And if you’re thinking about pursuing domestic adoption on your own—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 their own, it wouldn’t be a bad idea to get an attorney before getting started so you can avoid those kinds of traps.”

Of course, “people don’t like lawyers and I understand that,” says Ballard. “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 Coast and West Coast than in the Midwest or Southern states.”

Regardless of location, to avoid potential legal troubles and unnecessary costs, it’s wise to “consult with an adoption 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 afterwards; 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 Do Adoption Lawyers Charge?

“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.”

But 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 when looking for an adoption lawyer. Different lawyers will use different fee structures, and some arrangement 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.

Finding 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 and use the search box to find a lawyer based on your legal issue and location.

To help you get started, look for an attorney who specializes in family law and works specifically on adoption cases.

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