Domestic Adoption Has New Face

What is Domestic Adoption?

Domestic adoption refers to a situation whereby the child is placed with its adoptive parents voluntarily by its birth parents, who then legally consent to transfer their parental rights. Years ago, it would have been viewed as a risky process, with horror stories of birth parents coming back to ‘claim’ their child exploited by the media. In recent times, more information and education has become available, allowing thousands of hopeful parents to adopt the child of their dreams in an often smooth and clear process.

Why Domestic Adoption?

There are several reasons that parents looking to adopt a child may look into domestic adoption. The availability of children is higher than most people expect- In the most recent year for which accurate data exists, there were over 18,000 domestic non-relative adoptions of newborns within the United States. Although the number of people placing their children for adoption has fallen dramatically since the 1970s due to the stigma of single-parenthood thankfully decreasing, there are still many birth parents making the painful but loving choice to look for a family for their biological child.

Adoptive parents who are anxious about wait times can also be reassured. Most families successfully adopt less than two years after beginning the adoption process, and many of these have far less time to wait. Katie and Jeffrey Davis from Maryland were matched with a birth mother less than a month after their agency filled out the initial paperwork, and were able to take their daughter home with them seven months after the process had started.

If you feel that newborn adoption is your preferred pathway to parenthood, domestic adoption is probably the best route. International adoptions involve lengthy waits and several trips to to child’s country of origin, meaning that the children who are available to be adopted are often at least two years old by the time the adoptive parents are able to bring them home. in 2013 only 541 (7%) of the 7,092 children adopted internationally were under 1 year old, according to the U.S. Department of State. Those who opt for a domestic adoption may be matched with a birth mother who knows that adoption is the best option for her child, meaning that adoptive parents are often able to support her throughout the pregnancy and are able to bond with their child before it is even born.

Costs are also a factor.  Although there are always costs involved when adopting a child, visa fees and the cost of flights and accommodation in an international country (as well as time off work) do not have to be factored in when considering adopting from ones own country.

 

Logistics To Consider During A Domestic AdoptionAnthony. M. Brown is head of the Nontraditional Family and Estates Division of the law firm of Albert W. Chianese & Associates and specializes in domestic adoption and second-parent adoption.

The adoption of the child can be done in one of two ways. The first is to engage an agency to walk you through the process and to help you with paperwork and the emotional upheaval that such a big life decision will inevitably bring. The benefits to involving an agency are numerous; for example, having your own ‘Adoption Specialist’ who will help you communicate with the various other professionals who need to be involved in the process such as social workers, physicians and lawyers. Financial assistance may be available to help cover legal fees, and agencies often do not charge to process the adoption.

The second is a private arrangement whereby a birth mother and prospective parents arrange the adoption between themselves. They will have to hire lawyers and meet the legal requirements of adoption such as age, ability to care for the child and other important aspects. Parents who want to adopt are able to ‘advertise’ for a birth mother, and mothers who have chosen adoption for their child are able to to the same for an adoptive family.

 

With regards to future contact, the birth mother is rightly entitled to choose how all parts of the adoption of her baby proceed. This includes which family adopts the child; the logistical proceedings at the hospital; how much contact she has with the child in the future, and other aspects of the process. Society has evolved a great deal when it comes to adoption and the secretive, shameful process it was once considered to be has blossomed into a beautiful and loving pathway for children to be cared for by loving parents. It is becoming increasingly clear that honesty and openness is good for adopted children and the birth mother and adoptive parents often agree on an ongoing contact arrangement, whereby the biological family can be updated on the child’s progress and there may be mutual contact such as visits, phone calls or letters. The details of open adoption are completely individual according to each adoption case, so families can consider what they would like for their child and what they would be comfortable with. Arrangements vary from regular meetings with the child to annual letters sent through an intermediary.

 

The amount of information and the pros and cons of the different pathways about adoption can be overwhelming for prospective parents looking for their much longed-for child. Anthony M. Brown is head of the Nontraditional Family and Estates Division of the law firm of Albert W. Chianese & Associates and specialises in domestic adoption and second-parent adoption. If you have questions about adoption you can get in touch here.

in Adoption / Featured Articles  by Anthony Brown 0 comments

Same Sex Parenting: OK Supreme Court Landmark Ruling

Same Sex Parenting Wins Increased Rights in Oklahoma

The Oklahoma Supreme Court on Tuesday issued a landmark ruling same sex parenting increasing the rights of noncustodial parents who have been in same-sex relationships. The decision acknowledged the rights of a non-biological parent in a same-sex relationship who has acted as a parent.

The state’s high court ruled that an Oklahoma County judge improperly dismissed the case of Oklahoma City resident Charlene Ramey. The court reversed that decision and remanded the case for further proceedings so Ramey could pursue a hearing on custody and visitation of the child, who was born in 2005. Ramey was in a same-sex relationship with Kimberly Sutton. At the time of the relationship, Oklahoma did not recognize same-sex marriages, which changed following the U.S. Supreme Court’s decision last year not to take up an appeal of Oklahoma’s marriage-equality lawsuit ruling.

The couple agreed to have a child, born by Sutton with a donor. Sutton and Ramey later separated after almost 10 years of same sex parenting, as co-parents. Sutton denied Ramey’s status as a parent and sought to end all interaction between Ramey and the child, according to the opinion.

“Ramey, the plaintiff, is not a mere ‘third party’ like a nanny, friend, or relative, as suggested by the district court,” the ruling states. “On the contrary, Ramey has been intimately involved in the conception, birth and parenting of their child, at the request and invitation of Sutton. Ramey has stood in the most sacred role as parent to their child and always been referred to as ‘mom’ by their child.”

The decision is intended to recognize same-sex couples who, prior to the U.S. Supreme Court legalization of same-sex marriage, entered into committed relationships, engaged in family planning with the intent to parent jointly and share those responsibilities, the ruling states.

“Public policy dictates that the district court consider the best interests of the child and extend standing to the non-biological parent to pursue hearings on custody and visitation,” the ruling says.

Click here to read the entire article.

 

by Barbara Hoberock, November 18, 2015 TulsaWorld.com

in Adoption / In the News / Legal / Parenting  by Anthony Brown 0 comments

Lesbian Couple to Keep Foster Child Utah Judge Shifts Ruling

Utah Judge Reverses Ruling in Favor of Lesbian Couple

A Utah judge on Friday reversed his order to take a foster child away from a lesbian couple because of their sexual orientation, state officials said. The judge, Scott N. Johansen of Juvenile Court, had issued an order on Tuesday saying that the child, a 9-month-old girl, had to be removed from the home of a lesbian couple by the end of the day next Tuesday, and placed with a heterosexual couple.

The foster parents, Rebecca A. Peirce, 34, and April M. Hoagland, 38, and the state Division of Child and Family Services, both filed motions Thursday asking the judge to reconsider, and said they were prepared to appeal his decision. The couple, who are married, lives in Price, southwest of Salt Lake City.A Utah judge on Friday reversed his order to take a foster child away from a lesbian couple because of their sexual orientation

The clash is the first of its kind, said Ashley Sumner, a spokeswoman for the state agency, because Utah only recently began approving foster child placements with same-sex couples, after the Supreme Court’s landmark ruling on gay marriage in June.

Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”

While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.

The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.

in Adoption / Ethics / Foster / Foster Care / In the News  by Anthony Brown 0 comments

To adopt, or not to adopt… Really?

March 20, 2012 (See 2015 addendum @ the bottom of the article.)

Legal Surrogacy – To adopt, or not to adopt…???

adoptSurprisingly, that has been one of the most asked questions by parents of children born with the assistance of a surrogate mother.  In many cases, the carrier’s name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order.  Some states do not provide for pre-birth orders.  Those that do, may or may not replace the carrier’s name with that of the non-biological intended parent.  California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through legal surrogacy.

Legal Surrogacy is an emotionally, and financially, exhausting process.  It is a true leap of faith.  Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost.  With gestational surrogacy tabs running as high as $150,000.00, budgeting is a must.  Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second parent adoption in order to keep the numbers low.  Often, the cost of a pre-birth order is less than a second parent adoption.

In order to understand why a second parent adoption is vital, you must understand what a pre-birth order is, and what protections it provides.  Pre-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born.  Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of pre-birth orders and grants them upon the motion of an attorney representing the intended parents.  This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a pre-birth order.  For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established.  The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption.  The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process.  The state performs background checks, it orders that fingerprints be taken, mandates that a homestudy is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies that all adoption requirements by the petitioning parent, or parents.  The adoption order is the product of a fully litigated judicial process.  Because this rigorous process is not part of a pre-birth order proceeding, states which do not offer pre-birth orders may not recognize a relationship created in such an order.

Furthermore, some courts, through a pre-birth order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent.  For same-sex couples, this can present a fatal issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that does not recognize same-sex marriage.  These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

In New York County, Legal Surrogacy Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian[i] discusses the issue of establishing parental rights for a non-biological parent specifically.  The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, “that although [the] petitioner [non-biological parent] already has a legally protected parental relationship with Sebastian [through a marriage recognized in New York] and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time consuming methods of establishing one, the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.”  Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

The Matter of Sebastian case is an amazing confluence of family law, Constitutional law and reproductive law, with the ultimate conclusion that same-sex parents need to adopt to secure the non-biological parent’s rights to their children.  It is a broad and definitive statement that applies to all same-sex families, regardless of how their children were conceived.

While parents going through legal surrogacy must navigate financial and emotional waters, as well as an unsure legal landscape, the last step in the process, the second parent adoption, may seem like an afterthought.  It is, however, the only way to complete the process and ensure that each parent has a permanent and portable legal relationship with the child.

 

 

ADDENDUM (July 17, 2015) – It seems like ages ago when I wrote this piece, and the gay rights movement has literally transformed the world in those short 3 years.  While marriage equality is the law of the land in the United States, many people misinterpret this truly revolutionary civil rights gain as having the same transformative and direct effect on family law, specifically as it applies to the rights of a non-biological child to their bio parent’s spouse, even if achieved through legal surrogacy. 

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states.  For instance, in New York state, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples.  That case is called “Matter of Paczkowski v. Paczkowski.”  In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child.  While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate (as echoed in “Matter of Sebastian” as mention in the body of this article) the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order.  Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that. 

In our ever evolving world where gay couples and, more particularly, gay families are becoming more common place and understood, there are still areas of the law that directly affect our lives that continue to fall short of protecting our families in the ways that they must be protected.  Creating family security is of the utmost importance and it is the responsibility of every gay parent to make sure that happens.

 

 

 

 

[i]  http://www.nylj.com/nylawyer/adgifs/decisions/041009glen.pdf 25 Misc.3d 567, 879 N.Y.S.2d 677 (N.Y. Co. Sur. Ct. 2009)

in Adoption / Featured Articles / Surrogacy  by Anthony Brown 0 comments