Currently, adoptive and biological parents can make their own agreements about continuing contact or communication after the adoption, but unlike 23 other states with open adoptions, the contracts were not legally enforceable. The change to the current law now allows these agreements to be enforceable. If an agreement between the adoptive parents and birth relatives to allow continuing contact or communication between the parents or between the child and parents is breached, then the birth relatives can petition the court to enforce the agreement. The Act also requires parties to an adoption, including a child who is old enough to understand, to be notified about the right to have an open adoption.
Our firm has several attorneys who work regularly with adoptive parents and provide guidance with regard to open adoptions so we want to take this opportunity to address some frequently asked questions regarding this new law:
Q. Who can make an agreement?
A. A birth relative of the child to be adopted and the adopted parents. This includes the biological grandparents, aunts, uncles and other relatives.
Q. What steps need to be taken to make the agreement enforceable?
A. The parties must submit the agreement to the court where the adoption will be finalized and have the agreement approved. The court will determine if the agreement was entered into knowingly and voluntarily and is the best interest of the child or children who are being adopted. If the prospective adoptive child is twelve years old or older, the child must also consent to the agreement.
Q. What happens if the agreement is breached?
A. If an agreement is approved by the court then the birth relative or adoptive child or children can petition the court that approved the agreement to enforce the continuing contact or communication. The court will order specific performance, meaning the court will order the adoptive parents to comply with the agreement. The court will not set aside the adoption.
Q. Can the agreement be changed after the court approves it?
A. Yes. The court can change the agreement if either the adoptive child who is twelve years of age or older or the adoptive parents petition the court. The court will modify the agreement if doing so is in the best interest of the child.
The agreement will also automatically be terminated upon the child reaching eighteen years of age, unless the agreement states that it will end earlier. A party to an agreement or a child that is at least twelve years of age may seek to discontinue the agreement by filing an action in the court that finalized the adoption. The standard for discontinuance is also best interest of the child.
If you have questions about the Act or are interested in an open adoption agreement, you should consult an attorney with experience in Adoption Law.