Do I Need an Adoption Lawyer to Adopt?
Understanding the role of a lawyer in the adoption process
on August 18, 2022
Adoption can be a complex process with many moving parts. In legal terms, it’s important to have a clear definition.
Adoption is the “termination of a biological parent’s parental rights and establishing a parent-child relationship with another individual,” says Minnesota family law attorney Jason C. Brown.
The individual to whom the parental rights are transferred “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 and located through an agency of some sort,” he says.
Whether you go through an agency or pursue adoption independently, the process can be bureaucratic. There are several steps to finding and placing a child in a new home. There are also 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 a 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–the difference is simply the depth to which certain steps are taken,” says Brown.
“Adoptions 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, the “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,” says Brown.
“Once the home study process is over,” he says, “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.”
“[It’s] about the only nice thing that happens at a courthouse are adoptions,” says Brown.
One reason it’s important to consult with an adoption lawyer is to make sure you comply with all the legal requirements for adoption. Every state has its adoption laws that are similar in their general provisions but can also vary in specifics. A lawyer versed in adoption law can help avoid significant problems down the road.
In most states, specialized family or adoption courts handle adoption proceedings. Whether you go through an adoption agency or adopt privately, adoption is not official until legally approved by an adoption court.
If you choose to adopt, you will have to:
- 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 or 14 years of age)
- The adoption agency or other intermediaries who were used in the adoption process
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. Once the birth parent’s rights are terminated, parental rights can be transferred to the adoptive parents.
Most adoptions used to be so-called “closed adoptions,” meaning that the birth parents and adoptive parents never met each other. Now, most adoptions 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.
Learn more about how to adopt by reading this article.
The adoption petition should request and explain why the biological parent’s rights should be terminated—so that the adoption can be finalized.
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
- 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
Whether you go through an agency or pursue adoption privately, you must navigate the legal aspects of adoption. Adoption can be legally complex and time-consuming, depending on your case.
Having an attorney to navigate the legal process is often essential. An adoption lawyer will:
- Understand state and federal laws governing the adoption process
- 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 the adoption proceeding
- Be able to navigate the termination of parental rights
Fortunately, many attorneys provide free consultations, allowing the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.
Questions for an Adoption Lawyer
- What are your attorneys’ fees?
- What billing options do you offer?
- What legal services do you offer?
- What is your experience handling adoption cases?
- How long could it take before the finalization of the adoption?
You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
Look for an adoption lawyer in the Super Lawyers directory.