Adoption refers to the act by which an adult formally becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir
of the adopter and terminates any legal rights
then in existence with the natural parents.
While certain jurisdictions only 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. A closed adoption, meanwhile, results in the birth mother relinquishing all rights over the child and allows a state administrative agency
to conduct the selection process. Some jurisdictions also permit the parents in an open adoption to maintain their visitation and contact rights.
Most cases in which parental rights are terminated occur because of a consensual forfeiture of those rights by parents. Generally, a parent cannot revoke a consensual forfeiture. The natural parent’s right to have custody of their children has been deemed a fundamental right
by the U.S. Supreme Court. See Lindley for Lindley v. Sullivan
, 889 F.2d 124
(7th Cir. 1989). Unless statutory authority
exists, one may not adopt a child by private agreement unless an enabling statute
exists. However, under certain circumstances, a court may find a child to have been “equitably adopted,” and grant the child certain rights that an adopted child
otherwise would have.
Statutes determine the requirements regarding who may adopt in a given state. Most states have modeled their adoption statutes upon the Uniform Adoption Act. The Uniform Adoption Act provides that any individual may adopt another individual in an effort to create the legal relationship of child and parent, subject to the adopting individual having reached adulthood.
States vary with regard to factors they consider as disqualifying one’s ability to adopt. Some statutes disqualify unmarried or single individuals. The Uniform Adoption Act does not prohibit the unmarried from adopting. Others disqualify those suffering from physical or mental disabilities. Some states have imposed “reputability requirements.” Under a reputability requirement, individuals with criminal histories or employment instability would not qualify as suitable for adoption.
To proceed, an individual cannot petition for adoption unless the court makes an official finding that the individual is “acceptable” as an adoptive parent
. Before an adoption becomes official, the court must pass upon an investigatory report submitted by the state agency that the individual qualifies as “acceptably suitable” for becoming an adoptive parent. These investigatory reports are tremendously detailed, including the petitioners’ religious backgrounds, social history, financial status, moral fitness, mental and physical fitness, and criminal background. After weighing the factors, the agency makes a recommendation, which the court can accept or reject, with the court basing its decision on serving the best interests
and welfare of the child.
Many states, including Florida, Nebraska, and Oklahoma have restricted gays and lesbians from adopting children. But because adoption does not constitute a fundamental right, court challenges to the constitutionality of these restrictions have not worked
thus far. Legislatures have enacted these statutes upon the premise that child rearing by gays and lesbians would not be in the best interests of the child. Other jurisdictions may only consider sexual orientation as one factor when considering if a parent fits the acceptability requirement.
Procedure for Adoption
An individual wishing to adopt must petition the court to grant adoption, presenting evidence that they have satisfied the necessary statutory elements. After an investigation, the state adoption agency presents its report of the petitioners to the court and makes a recommendation.
When the statute requires their consent, due process
accords the natural parents an opportunity to be heard by the court on the matter. If the court cannot find the natural parents, the court must take steps reasonably calculated to notify the parents about the termination proceeding. For situations in which the natural parent cannot or does not want to care for the child, the natural parent’s wishes for the child’s placement receive significant weight from the court.
The petitioner bears the burden of proving by a preponderance of the evidence
that adoption is in the child’s best interests. An adoptive parent looking to terminate the biological parents’ natural rights must show the action to be in the child’s best interest by “clear and convincing evidence