Legally Enforceable Open Adoption Contracts in the United States

*Disclaimer: I am not an attorney and nothing in this article should be substituted for legal advice. I highly suggest any expectant mother who is considering adoption to retain her own legal representation who understands adoption law in the state that the adoption will be finalized as well as the state she lives in. This is my interpretation of the laws and my opinion based on my own research and the stories I’ve heard from others who have open adoption contracts that are supposed to be legally enforceable.*

Legally enforceable open adoptions are a fairly new thing. There are lots of questions about them from adoptive parents, expectant parents, and birth parents. These “legally enforceable” post-adoption contracts can vary widely from state to state. When an expectant mother hears that she resides in a state that has legally enforceable open adoptions usually she has a sense of security in believing that the adoptive parents of her child will not be able to “trick” or “fool” her into relinquishing her child to them by making promises they don’t intend to keep. She may also feel that if the adoptive parents change their mind about the type of contact they want, she is legally protected. On the surface this is what it appears to be. I’d also assume that adoption agencies, attorneys that represent the prospective adoptive parents, and facilitators would not go into great detail about how exactly the law would work. I’d like to take the time to do that here.

I heard one story of a first mom who lived in a state that had legally enforceable post-adoption contracts. This was just a fact. When she asked about it she was told, “Yes, our state has legally enforceable open adoptions.” However, she had no legal representation of her own and found out, after her open adoption was closed and she sought relief, that the law in her state required the open adoption contract to be entered with the final decree of adoption. Because she wasn’t part of the court hearing for finalization, she had no idea if this had happened. Because she had no legal representation, representing HER ALONE, she was unaware that the law was written this way. She did have a post-adoption contract that had been worked on between her, the agency, their attorney, and the prospective adoptive parents, it just wasn’t legally enforceable in her state because it never went before the court.

I heard another story about a mom who DID have her post-adoption contract entered correctly making it “legally binding.” When visits never happened and communication was cut off as soon as her child was relinquished, she pursued the legal channels put in place to enforce the contract. She put up a lot of money in attorney and court fees to be told, by the judge, that she relinquished all parental rights and if the adoptive parents didn’t feel it was in the best interest of their child to have visits then that was their right. The judge then rewrote the post-adoption contract, taking away all direct contact or communication with her child, and only enforced a yearly update.

There was another mother who lived in a “legally enforceable” state where visits and all communication had stopped after three years. When she sought to enforce her agreement she learned two things. 1) She didn’t have anything near the financial resources to even begin the process (as most first parents don’t) and 2) she couldn’t even start the process if she wanted to because she didn’t know where the adoptive parents now resided since their communication drop coincided with a move to a different state in which they didn’t disclose.

It’s important to remember that post-adoption contracts are a very new area of law and there aren’t a lot of cases to set precedent yet. Really it’s up to the judges or mediators involved to determine the outcome of a contested contract, if the first parent can come up with enough money to begin the process. It’s also important to remember that post-adoption contracts are not the same as “custody” or “visitation” agreements you’d see in traditional family law that involves two parents that are not together. You do not retain any parental rights once you have relinquished a child for adoption. They have been terminated. No amount of legally enforceable open adoption laws can change that. No amount of legislation to make more open adoptions stay open can change that. You will not be fighting in court for your “right” to visit your child. You will be fighting to have a contract enforced. This is contract law mixed with adoption law (like I said, new territory). Almost always, a judge has the right to alter the contract, change things using his best judgment, or void it altogether. So, while “legally enforceable,” they are also “legally voidable.” Since there are no parental rights intact, an adoptive parent could argue that they feel a continued open adoption would not be in the best interest of their child. They could argue they simply feel that the constant “hello” and “goodbye” is not something they feel their child is emotionally prepared for. They’d probably get contact stopped, or greatly reduced, just based on that alone. Their child, their call. If there has been an ongoing relationship between the child and the first parents for a number of years it may not be so easy as a relationship has been established and the courts may find it detrimental to sever that relationship altogether. However, it would have to be a well-established relationship with frequent visits and a solid relationship. A relationship like this is most likely facilitated by adoptive parents who are very open-minded, educated, and “get it.” Those adoptive parents who choose to facilitate an open adoption at that level are probably not likely to break an open adoption contract to begin with.

The majority of adoptive parents aren’t “evil” people who set out to break a first mom’s heart, but rather are ill-advised, ill-prepared, or uneducated. They also don’t care to change these things about themselves and only see adoption in the light they choose to.  The most vulnerable first moms/expectant moms, the ones most at risk of an adoption closing, are the ones in the first 5 years into their journey as a first parent. Relationships aren’t well-established yet.

Many states will require mediation before going to court to seek relief of a violation of your open adoption contract. This means that you (and any other party on the contract, such as a first father), and the adoptive parents will be required to sit through a series of “negotiation,” so to speak. A mediator will play “referee.” You will try to come to an understanding and agreement outside of the courts. Sometimes you’ll be required to pay a fee to the courts for the mediation – which is usually split evenly between both parties. Each state has its own individual laws, but usually after a series of about 3 sessions if no agreement can be settled on it will go to the courts and a judge will decide.

What are the consequences for adoptive parents who violate an open adoption contract? No state says an adoption can be reversed or nullified if the post-adoption agreement is not followed. This means that you cannot challenge an adoption because the “legally enforceable” post-adoption contract has been violated. I can find no codes that specifically state any consequences, punitive or otherwise, for adoptive parents that have been ordered, by a judge, to resume the post-adoption contract as it was entered.

28 states currently have “legally enforceable open adoption contracts.” Many of those are only for in-family adoptions and relate only to grandparents.

For a review of each state’s post-adoption contract laws please CLICK HERE.

If you take the time to read some of these laws, you will see that all of them allow for a judge to use his discretion when it comes to enforcement or challenging the original contract.

There are many things to consider when considering adoption for your child. Regardless of your state’s laws any number of things can arise. Even in states with legally enforceable open adoption laws, the jury is still out, so to speak. There are so many things that have not even been addressed. For instance, what if your child is re-homed? While rare, in domestic infant adoption cases, it can happen. Will your legally enforceable contract be upheld in a court of law if your child is put up for adoption by the original adopting parents? Most likely, not. If you are relying on a legally enforceable open adoption as the terms of being able to go through with relinquishment are you prepared to fight the adoptive parents if they violate the contract? Do you have the financial means to do so?

In review, as stated in the disclaimer, I advise any expectant mother who is thinking of an adoption plan to seek independent representation.  This advice is not limited to post-adoption contracts, but for everything surrounding the legalities of adoption. Don’t rely solely on an adoption agency, attorney representing the prospective adoptive parents, a facilitator, or charitable organization to fully inform you. This is something you must actively seek to do on your own.