Domestic Independent Adoption

In this country, more newborns are placed through independent adoption than through private agency adoption. While it is difficult to determine why so many birth parents now choose independent adoption, they do report some reasons consistently. These reasons include (1) a perception by birth parents that agencies are profit oriented and bureaucratic in their treatment of birth parents, (2) a desire by birth parents to play an active role in the selection of the adoptive parents, and (3) a desire on the part of birth parents for the child to go directly into the physical custody of the adoptive parents rather than into temporary foster care.

There are four states which prohibit independent adoption and require that all adoptions be agency adoptions. Even in those four states, parties are able to achieve what is, in spirit, an independent adoption:  the adoptive parents and birth parents identify each other without intervention by an agency and then arrange for the parental rights to be relinquished through an agency so that the adoption becomes a “directed agency adoption.”

In an independent adoption, the birth parents and adoptive parents usually make an initial contact with one another by such means as word of mouth and newspaper advertising. The laws of some states allow individuals who are not licensed as child-placing agencies to match adoptive parents with birth parents. Even if adoptive parents do not use an intermediary, they frequently consult with an attorney when they commence their search for birth parents. That attorney will advise the adoptive parents on ways to search for birth parents and the laws which are applicable in a particular situation.

State laws usually control the adoption processes. In addition, when two or more states are involved, parties must comply with the Interstate Compact on the Placement of Children (ICPC). The ICPC applies whenever a child is brought from one state (the sending state) to another state (the receiving state) for the purposes of adoption. The ICPC requires an application for approval before a child can be transferred into the receiving state. The process requires submission of various documents, including a preplacement assessment of the fitness of the prospective parents. The ICPC official in the sending state may require that the parties comply with some aspect of the law of the sending state before the official will approve the transfer of the child.

The applicable law on most points will be the law of the state in which the adoptive parents reside. When the birth parents reside in another state or give birth in another state, it is possible that some aspects of the law of that other state will also apply. Proper legal counsel on these points is essential.

There are certain emotional and financial risks associated with independent adoptions. When birth parents initially agree to place a child for adoption but later change their minds, the adoptive parents undoubtedly suffer emotionally. Even if the child is not yet born when the birth parents change their minds, the adoptive parents have formed emotional ties with the birth mother and the expected child. If the child has already come into the physical custody of the adoptive parents, the emotional trauma will be even greater.

It is rare for the laws of a state to allow a birth parent to give a binding consent to an independent adoption before the birth of the child. In addition, states mandate various minimum waiting periods after the birth before a consent can be signed. Some states require waiting periods that range from 48 hours to 10 days. States also have varying laws governing whether or not birth parents are permitted to change their minds for a period of time after giving consent. Some states make the consents immediately irrevocable upon signing; others allow birth parents to revoke consents for short periods.

When one of the birth parents is not cooperating in the adoption plan by signing a consent to adoption, it is usually necessary to take alternative steps to terminate the rights of that birth parent. If that birth parent can be located, a court order will normally be delivered to him which requires him to come forward by a certain date if he is interested in parenting the child. If he cannot be located, it is usually necessary to publish a notice in the newspaper. Once sufficient time has passed from the newspaper publication, the court will be legally able to terminate the absent birth parent’s legal rights.

Adoptive parents should consult with an attorney when they commence their search for birth parents. That attorney will either advise the adoptive parents on how to search for birth parents or actually match the adoptive parents with specific birth parents when state law permits. In most states, the attorney for the adoptive parents is ethically prohibited from simultaneously representing the birth parents. Because of this prohibition, there are some situations in which the two parties will assert that the one attorney involved is representing only the adoptive parents and that the birth parents simply have no legal representation. This approach is ill-advised because it presents dangers to all of the parties. It is a far better practice to insist that the birth parents retain separate counsel to represent their interests.

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