Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person’s biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.


Adoption in the US is mostly governed by state law, although federal constitutional principles and limited federal statutes may come into play.  General features of adoption law that are common across states include the complete vesting of parental rights with the adoptive parents, the requirement of consent, the best interests of the child standard, the confidential nature of adoption proceedings, and the permanent nature of adoption.

A common question of those considering an adoption concerns who will have the right to have contact with the child once the adoption is final. The answer is that, just like natural parents, the adoptive parents will have complete authority to decide the matter.  Certain jurisdictions permit one of the two types of adoptions, other jurisdictions recognize two types of adoptions – open and closed adoptions. An open adoption permits the birth mother to select her child’s adoptive parents. In an open adoption, the adoptive parents allow the child to contact with birth parents, previous foster families, and other individuals from the child’s life prior to the adoption.

In a closed adoption, they do not. A closed adoption results in the birth mother relinquishing all rights over the child and allows a state administrative agency to conduct the selection process.

In all states, the determination whether prospective adopters are suitable parents is based on a finding that an adoption is in the best interests of the child. The law requires the focus to be on the interests of the child, rather than the interests of the birth parents, the adoptive parents, or anyone else.  An adoption is generally not final until a probationary period of a certain number of months has elapsed, during which time the question of the best interests of the child may be evaluated.  A court will generally rely on investigations conducted by child welfare professionals in determining whether a placement is in the best interests of the child.

The process of adoption may differ depending on the circumstances and laws relevant to individual circumstances.

Some adoptions involve family members. Stepparents may adopt their stepchildren or family members may seek to adopt a grandchild, niece, or nephew due to the death or incapacitation of the birth parents. These adoptions tend to be easier than those involving parties that are not related.

Other adoptions may take place with the assistance of an agency, may be privately arranged but processed by an agency in an “adoption by identification“, or the birth parents and adoptive parents may come to a private arrangement termed an “independent adoption“. Not all states permit independent adoptions.

International adoptions have been quite popular, though they also introduce additional issues having to do with U.S. immigration and the requirements of your state of residence.

Adoption is quite complicated and the assistance of an agency and an attorney are both frequently helpful. If you are considering an adoption, working with an attorney can make the process go more smoothly. Hiring a qualified lawyer is particularly important if you expect the birth parent whose rights will be terminated to be uncooperative. Experienced assistance can help you avoid costly and time-consuming errors that can ultimately jeopardize your ability to successfully adopt a child.

Thomas Elliott

Education: Brooklyn Law School, Brooklyn, New York. Pace University, White Plains, New York.
Professional Associations and Memberships: American Bar Association, New York State Bar, The Association of the Bar of the City of New York, Brooklyn Bar Association, National Academy of Elder Law Attorneys (NAELA).

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