Do I Need an Adoption Lawyer to Adopt?

Use these links to jump to different sections:

• The Legal Process of Adopting
• You Must Follow Your State’s Adoption Process
• The 3 Big Questions in an Adoption Petition
• How an Adoption Attorney Can Help You

The definition of adoption is simple. It’s the “termination of a biological parent’s rights and establishing a parent-child relationship with another individual,” explains Jason C. Brown, a family law attorney at Barna, Guzy & Steffen in Minnesota.

The person who gets the parental rights “can be a family member such as an aunt or uncle, an acquaintance like a friend or colleague, or someone completely unknown to the biological parents who is located through an agency of some sort.”

But in practice, the adoption process can be complex and bureaucratic.

There are several steps to finding and placing a child in a new home, and there are important legal requirements to make adoption official, from filing an adoption petition to attending a court hearing. Adoption laws and procedures vary from state to state. 

Given the complexity of the adoption process, it often makes sense for prospective adoptive families to consult with an experienced family law or adoption lawyer. This article will look at the general legal process for adoption and point to further legal help.  

The Legal Process of Adopting

The adoption process is “procedurally the same for any type of adoption,” says Brown. “They always start with a petition for adoption that outlines the underlying facts and why the individual seeks to adopt a child. From there, the relevant government agency will get involved and scrutinize to a certain extent the potential adoptive parents.” 

In some cases, “scrutiny is minimal—for example, in a stepparent or grandparent adoption,” where there’s already a relationship between the child and adult. However, “in a traditional adoption, social workers conduct in-depth home studies. So, a lot hinges on whether there’s already a familial connection or not.” 

“Once the home study process is over,” Brown adds, “the fun begins with the court hearing” where the adoption is finalized.

When the proceeding is complete, there’s usually a celebration. “Judges will typically be prepared for photos and might even have a gift for the family or something like that to commemorate the occasion. About the only nice thing that happens at a courthouse are adoptions,” says Brown.  

You Must Follow Your State’s Adoption Process

In most states, specialized family or adoption courts handle adoption proceedings. Whether you go through an adoption agency or adopt privately, it’s not official until legally approved by an adoption court.  

While state adoption laws are similar in their general provisions, they can vary widely in specifics. To adopt, you generally must: 

• File an adoption petition with the adoption court 
• File the biological parents’ written consent or a prior court order terminating the birth parents’ rights 
• Attend an adoption hearing at the court 

Before the adoption hearing takes place, everyone with an interest in the adoption must receive notice of the hearing. Interested parties include: 

• The biological parents of the child 
• The child if they are over a certain age (the specific age varies by state, but is typically 12 to 14 years of age) 
• The adoption agency or other intermediaries who were used in the adoption process 

The 3 Big Questions in an Adoption Petition

Three key questions should be addressed in the adoption petition: 

• Are the prospective adoptive parents eligible?  
• Is the child available to adopt? 
• Is adoption in the best interests of the child? 

Let’s look at each of these issues in more depth. 

Who Can Adopt?

One key issue in adoption proceedings is the question: Who is legally eligible to adopt?  

State adoption laws govern eligibility to adopt, setting age and residency requirements and rules related to family members who seek to adopt. 

While there are variations across states, adoption laws generally allow the following parties to petition courts for adoption: 

• Married couples who jointly petition the court to adopt 
• Grandparents who want to adopt their grandchild 
• Stepparents who want to adopt their stepchild 
• Single individuals who seek to adopt 

In the adoption petition, you will need to provide your personal information so the court can evaluate your adoption eligibility based on state adoption law. 

Is the Child Available to Adopt? 

Legally, a child is only available to adopt once the birth or biological parent’s rights are terminated. So, the adoption petition must request and explain why the biological parent’s rights should be terminated.

Once the birth parent’s rights are terminated, parental rights can be transferred to the adoptive parents and the adoption can be finalized.

Most adoptions used to be closed adoptions, meaning that the birth parents and adoptive parents never met each other. Now, most are open adoptions, meaning that both sets of parents meet each other during the adoption process and may stay in touch after the procedure is finalized. 

There are several ways to go through the adoption process: 

• With the help of an adoption agency. There are both public and private adoption agencies. The state runs public agencies, typically as part of the state’s department of social services. Private agencies are usually operated by nonprofit organizations that may or may not have a religious connection.  
• Private adoption. In private adoptions (also called independent adoptions), prospective parents directly deal with a biological mother without an adoption agency’s assistance. Private adoptions may be facilitated with the help of a lawyer, social worker, physician, or other individual functioning as an intermediary. 
• Identified adoption. This is a hybrid between private and agency adoption. Typically, the prospective adoptive parents identify and connect with a biological mother who wants to put their child up for adoption. Increasingly, these connections may happen over social media. The prospective and birth parents then connect with an adoption agency to handle the process. 
• International adoption. In many ways, international adoption is the most complex type of adoption. Different international laws and processes apply depending on the country you want to adopt from. Complex U.S. federal laws also apply, including the Immigration and Nationality Act (INA) for visa and passport issues. 

Is Adoption in the Best Interest of the Child? 

The adoption petition should also address this question. The child may be available for adoption, and the prospective parents may be eligible to adopt, but is adoption best for the child? 

Courts can look at many specific factors to evaluate if adoption is best. A key part of the evaluation is the home study investigation. A home study can last several months and results in a report that assesses the prospective parents’: 

• Family background and relationships 
• Education 
• Employment and financial situation 
• Lifestyle and routines 
• Neighborhood and living situation 
• Background checks 

With the help of home study reports, courts will evaluate if prospective parents are a good fit given the child’s circumstances and needs. 

How an Adoption Attorney Can Help You 

Adoption can be a legally complex and time-consuming process. Getting qualified legal services is worth it. An experienced adoption attorney will: 

• Understand state and federal laws governing your adoption case 
• Know which international laws or procedures apply if you are adopting internationally 
• Be familiar with the legal requirements for grandparent and stepparent adoption 
• Help you understand your legal rights as a biological or adoptive parent 
• Be able to verify consent and notice issues in adoption finalization
• Be able to navigate the termination of parental rights 

Look for a top adoption lawyer in your area though the Super Lawyers directory.