Avoiding Contested Adoptions

In the wake of situations such as the well-publicized tragedy of cases like the Baby Jessica and the Baby Richard cases, it seems appropriate to reflect on the need for care. The quality of the professional advice that you receive may determine the success of your adoption. More importantly, the Baby Jessica case and the Baby Richard case did not have to occur and they probably would not have occurred had the adoptive parents taken a few simple precautions at the beginning.

Several important facts about the Baby Jessica case are not generally known. The adoptive parents were residents of Michigan which was at the time one of only 6 states in the country which did not permit independent (non-agency) adoption. To resolve this problem, the adoptive parents found another state (Iowa) which not only permits independent adoption but allows non-resident adoptive parents to finalize their adoption in the state where the birth parents reside. The latter factor is critical since it enables the non-resident adoptive parents to utilize the law of the other state.

The above circumstances presented a somewhat unique situation and therefore made the need for experienced legal counsel more important. The attorney retained by the adoptive parents to represent them was apparently not experienced since he took the birth mother’s consent too soon after the birth. Iowa has a 72-hour waiting period but the consent in this case was signed when only about 40 hours had passed. This defect rendered the birth mother’s consent legally insufficient (and probably void) from the outset.

Another problem resulted from the fact that a separate attorney was not retained to represent the birth mother. An experienced separate attorney for the birth mother could have explored with the birth mother her commitment to the adoption and the importance of accurately identifying the birth father. While there are no safeguards which can completely eliminate the risk of a birth mother lying about the identity of the birth father (as the birth mother did in this case), involvement by an experienced professional could have drastically reduced the risk.

What is most critical to an analysis of the Baby Jessica case is an understanding that the birth mother’s revocation of her consent and her revelation of the true identity of the birth father occurred when the baby was about 4 weeks old. At that point, the adoptive parents were presented with a situation in which they had no consent at all from the actual birth father and only a legally invalid consent from the birth mother (because it was signed too early). From that point on, the adoptive parents never had any realistic chance whatsoever of adopting Baby Jessica.

The Baby Richard case involved adoptive parents and a birth mother all living in Illinois. The birth mother was well aware of the birth father’s identity since he was her fiancé who had lived with her until shortly before the birth. Despite this, the birth mother refused to identify the birth father. Knowing this, the adoptive parents still elected to proceed with the adoption. The birth parents reconciled with one another shortly after the birth and the birth father vigorously asserted his parental rights. Although the ensuing court battles lasted about four years and although the adoptive parents won at some of the stages, the birth father eventually prevailed and the child was returned to him and the birth mother. As in the case of Baby Jessica, the Baby Richard case was one where the adoptive parents were destined to lose because the adoptive parents did not proceed with care at the beginning stages.

Prospective adoptive parents can best protect themselves from problems by following some basic precautions, including the following:

  1. Educate yourself. There are many books available which describe the adoption process. Read as many of them as you can. Not every theory in every book is valid but, as you read more books, a common thread will emerge concerning what practices are best. Better yet, attend classes presented by support groups. In the D.C. Metropolitan area, there are excellent classes presented by Families for Private Adoption (FPA), and RESOLVE.
  2. Select an experienced adoption attorney and follow his or her advice. Here again, the local support groups are an excellent resource.  Members who have used a specific attorney will be able to give you a reference based upon first-hand experience. Another resource is the American Academy of Adoption Attorneys which has over 300 members from around the country. The Academy has a membership directory which lists the attorneys both alphabetically and geographically by the states in which they practice. The directory can be obtained free of charge by writing to the Academy at P.O. Box 33053, Washington, D.C. 20033-0053. The directory is also available online at www.adoptionattorneys.org.
  3. With the advice of your attorney, determine which state law will apply to your case and follow the law religiously. The application of a particular state’s law to your case (state laws are all different) should not be an afterthought, but a part of your initial planning. Those laws will control the methods you use at the outset when searching for birth parents and dictate which expenses you can legally pay.
  4. Address the birth father issue at the very beginning of your discussions with any birth mother. Failure to properly address the birth father issue is the primary cause of problematic adoptions. Most of the time, the birth father will not assert an interest in parenting the child and the law of your state will provide a legally sufficient way to protect yourself by terminating the birth father’s rights. If the birth father does wish to parent the child, the situation is one you should not pursue. Either way, it is in your best interest to determine the birth father’s position as early as possible.

While our hearts go out to the individuals involved in the Baby Jessica case and the Baby Richard case, those situations are certainly not representative of the vast majority of adoptions. No birth parents or adoptive parents who are considering adoption should allow these situations to deter them. If they proceed using good adoption practices, they will be rewarded by the process.

For more information about adoption in general, click to view one of the following pages: