Do a Private Adoption

Families come in all shapes and sizes and in the words of the National Adoption Center, "There are no unwanted children. Just unfound families." Private adoption, where a lawyer acts as the go-between with the birth parents and the adoptive parents, is one way to make your way through the often confusing adoption legal framework.

Steps

Planning a Private Adoption

1. Explore your eligibility to adopt a child. There is not a constitutional right to adopt a child. As a result, all adoption rights, procedures, and requirements are governed by state statutes with some guidance from the federal government. In general, under current state laws, any single adult or heterosexual married couple is eligible to adopt if they meet certain criteria.
   • With the legalization of same sex marriage, adoption laws are in flux. Most states statutes are silent on this issue. In Florida, Mississippi, Nebraska, Oklahoma, Virginia, Utah, and Connecticut, the state laws either explicitly forbid adoption by, or place roadblocks in the path of, same sex couples. Until the lawmakers act, LGBT married couples should consult with an attorney skilled in adoption law to discuss the specific laws of your state.
   • Age requirements of prospective parents, if listed in the statute, range from 18 to 25. Six states, California, Georgia, Nevada, New Jersey, South Dakota, and Utah, require that the adoptive parent be at least ten years older than the adoptee. In Idaho, it is 15 years.
   • Consult the laws of your state for the specific eligibility requirements.
2. Determine the residency requirement. Seventeen states require that you be a resident of the state with periods ranging from 60 days to one year. Your residency can be proved through your driver's license, mortgage receipts, tax records, utility receipts, and car registration information.
   • If you are unsure, consult with an adoption attorney or agency. In general, the states that require you to be a resident are Arizona, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Minnesota, Mississippi, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, Wisconsin, and Wyoming.
   • If you or your spouse are members of the military, there may be exceptions to the residency requirements. Consult with a local JAG attorney, family law attorney, or adoption agency to see if the residency requirement can be waived.
3. Consider an adoption facilitator. Facilitators are unlicensed individuals and organizations who match birth mothers with prospective adoptive parents. Facilitators range from non-profit organizations to businesses that charge a very large fee for the introduction.
   • Adoption facilitators operate outside the legal framework and are not held to any of the same licensing and competency requirements of the professional agencies.
   • Adoption facilitators are not legal in all states. Check state laws in both the state of your residence and the state where the child may reside and verify that using a facilitator is allowed.
   • Some facilitators have good reputations and have a vast network of community contacts for finding birth mothers who want to put babies up for adoption.
   • If you want to consider using a facilitator, you must research them carefully. You want a reputable organization with a track record of successful placements. Ask for references and check them carefully. Ask about fees and request they be put in writing.
4. Decide who you want to handle the legal side of your adoption. In a private adoption, the birth parents transfer their rights directly to the adoptive parents rather than the state or an adoption agency. However, the adoption is still governed by state law and there are many legal procedures and requirements you must meet for the adoption to be granted. Most adoptive parents work with an attorney to guide them through the process.
   • Choose an attorney with experience in private adoptions. When you interview attorneys, ask if they are a member of the American Academy of Adoption Attorneys or an equivalent state accreditation. If your attorney is not accredited, question her about her specific experience handling private adoptions. The AAAA maintains a directory of accredited adoption attorneys in the United States.
   • A private adoption where the adoptive parents and the birth mother have not agreed beforehand can cost over $20,000. Before you make the financial and emotional investment in the adoption, you want an attorney who is familiar with all federal, state, and local laws and procedures. Depending on your location, expect to pay $100 to $200 per hour for skilled legal assistance.
   • Because of the complexities of the adoption process and the potential for negative consequences, it is not recommended that you attempt to do an adoption pro se. Even a consent adoption within the family, for example, an aunt and uncle adopting a nephew with full consent of the birth parents, should still be prepared and shepherded through the court by an attorney.

Completing an Adoption Home Study

1. Prepare for the Home Study. All states require that prospective adoptive parents participate in a home study. There are no exceptions for private adoptions. While a source of stress for many, the home study is intended to educate you about the process and evaluate your home life and capability to be an adoptive parent.
   • Home studies vary by state. Some require you attend an orientation and training class. Others will be conducted strictly at your home. Your attorney can familiarize you on the procedure in your state.
   • State law determines who can conduct a home study. In a private adoption, it will most likely be done by a private agency licensed by the state. Expect to pay up to $1,000 for your home study.
   • Your home study may take three to six months to complete. Many prospective parents do the home study while waiting to be matched with a birth mother.
2. Participate in the Home Study. The interviews and inspections may be long and feel very invasive. However, it is critical that you participate openly and enthusiastically. Questions will vary by state requirements, but there are some common themes.
   • You will be asked about the family background of everyone living in the home. Be prepared to discuss your childhood and how you were parented, including feelings on discipline. Be prepared to submit to a criminal background check.
   • The interviewer will ask about your education and employment, including future plans. If asked, be ready to produce income and expense information.
   • Be ready to talk about your daily routines. If you have other children, what schedules and routines do you keep. If you and your partner work, the interview will ask how you intend to integrate the needs of the child into your schedule. You should be ready to discuss how you will handle child care.
   • Your home will be inspected for safety and suitability. You do not have to own your own home or have a separate bedroom for each child. If you have concerns about where you live, discuss it with your adoption attorney.
   • The Home Study will probe the state of your relationship and your support system. Single parents will be asked about dating and romantic relationships. Married parents will be encouraged to talk about the relationship and how a child might affect the marriage.
3. Keep you Home Study current. You do not have to have located an adoptive child before the Home Study. However, most states require that if a certain amount of time, usually 6 months, elapses, the process must be repeated and an updated report prepared. Discuss your concerns with the Home Study agency and your attorney.

Completing the Adoption

1. File the adoption petition. Once a child has been identified and the Home Study completed, your attorney will prepare and file the adoption petition with the court. The petition will identify you and your partner, the birth parents, consent to the adoption, and ask the court to grant the adoption. When the petition is filed, the court clerk will set it on the judge's calendar for an initial review.
2. Serve the petition on the birth parents. Your lawyer will have the adoption papers delivered to the birth parents. In a private adoption where there is not an issue of consent, your lawyer will likely meet with the birth parents and have them sign the documents.
   • No consent to the adoption is binding until the child is born. Your attorney will explain to you whether the birth parents have any opportunity to revoke consent. In some states, the signature is considered irrevocable. In other states, there may be a grace period of up to 30 days.
   • If the birth parents refuse to sign or revoke consent, the adoption cannot proceed.
   • In a private adoption, the court will not compel consent or sever parental rights. If the birth parents refuse to consent and are unfit, the child will be taken into state custody.
   • A refusal to give consent or a revocation can be emotionally devastating to the adoptive family. You must be prepared for this possibility and have a support system in place to deal with your loss.
3. Attend the final hearing. Adoption hearings can either be part of the regular court schedule or on a special adoption docket. Assuming the consent and Home Study are in order, the judge will review the file and issue the orders that finalize the adoption.
   • Discuss the hearing with your lawyer. If you are scheduled on the regular docket, do not bring balloons, cameras, or large groups. Your adoption may be scheduled in between a divorce, a child support modification, and a motion about visitation. Do not disrupt or delay the court's schedule. Save the party for after the hearing.
   • If you are scheduled on a special adoption docket, the procedure will be relaxed and more festive. However, still check with your attorney before using your camera in the courtroom.
   • Unless your state allows for an appeal, the adoption is final when signed by the judge.

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Sources and Citations

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