Adoption is a permanent decision, and each adoption needs to be made ironclad to avoid difficulties later on. This is why the adoption process can seem so difficult and complicated for everyone involved, particularly the adoptive parents. But what can seem like unnecessary obstacles to the adoption process are meant to ensure that everything is done properly and that the child and their new family achieve the best transition to their new lives as possible.
Below is a summary of the most common obstacles to the adoption process, including challenges by the birth parents and difficulties that may arise in an open adoption.
Challenges by the Birth Mother
Probably the greatest fear adoptive parents have is that the birth parents will change their minds and petition to get their children back. Although the laws are thorough, sometimes a birth parent will challenge an adoption for any one of a number of reasons. Most states allow birth mothers to revoke or withdraw their consent to give up their children for adoption; in some states this can be done at any time before the adoption has been finalized.
By law, birth mothers actually can't give consent to an adoption until after their babies have been born. However, Alabama, Hawaii, Washington, and Wisconsin allow prebirth consent in certain circumstances. But there are strict rules regarding consent. A birth parent who has been proved to have deserted the child, for example, has no legal right to give or revoke consent.
Challenges by the Putative Father
Many adoptees are the children of single women who may not even know the fathers' identity. Sometimes, birth fathers may wish to exercise their rights to claim their children, which could become an obstacle to the adoption process. Unwed, or "putative" fathers can establish certain rights thanks to changes in state laws since the 1970s. That said, a putative father needs to prove that he's actually earned these rights.
Putative fathers have to prove their commitment to their children by having signed the birth certificate, provided support for the child, and communicated with him or her, and by having obtained a court order establishing paternity. They should also have submitted their names to a registry of putative fathers in their states. Moreover, in most cases all of these steps need to have been taken before a birth mother has made a petition to the court to give up her child for adoption.
Court cases involving putative fathers who tried to revoke adoptions after claiming they knew nothing of their children's births have resulted in many states clarifying their laws. Putative fathers may have the law on their side, but again, only if they can prove they're truly concerned for their children's welfare.
Within pockets of the adoption community the question of whether to allow children of one race or color to be adopted by parents of another race or color is a source of heated controversy. Some people believe that mixed-race adoptions are a good practice because they break down racial, ethnic, and cultural barriers. Others see mixed-race adoptions as a means of diluting the cultural and ethnic heritage of adopted children.
Multiethnic adoption presents a compelling problem for two reasons. One is that, as noted above, there are many more minority children available for adoption (including mixed-race children). The other is that there are many more whites than minorities who are willing to adopt. Insisting on matching race to race can leave many children without available parents to adopt them. For children of mixed ancestry, matching race to race is hardly possible.
Federal law protects parents and children from this dilemma. The Multiethnic Placement Act (MEPA) of 1994 states that no adoption agencies that receive federal funds can deny or delay a placement based on race or ethnicity. Occasionally there are still some court cases that raise the issue, but parents who work with a reputable agency and knowledgeable attorneys shouldn't have to worry.
MEPA doesn't cover children of Native American ancestry. The Indian Child Welfare Act of 1978 was passed to protect Native American (or "Indian") children from being taken away from their families for adoption without parental or tribal consent. This action was apparently not uncommon in years past, and the protection is thus important.
Unfortunately, some have read the law to mean that no child with Indian ancestry can be legally adopted, even with the birth parent's consent, without tribal approval. Complicating the matter is the unclear definition of Indian ancestry; some tribes may consider a person with "one drop" of Indian blood to be Indian. Clearly there are many layers to this issue, and it requires careful evaluation by the prospective parent with the help of knowledgeable intermediaries.
The Challenges of Open Adoption
Open adoption allows the birth family to have visitation rights with the child and the adoptive family. The idea is that maintaining contact with the birth family is beneficial for the child. In some cases it may be, but it can also create uncomfortable situations in which the child ends up being forced to make a choice most children should never have to make. An open adoption can take place only if both the adoptive and birth parents sign an agreement and only if that agreement meets the approval of the court.
Different states have different rules about open adoption procedures and also different approaches for addressing whether open adoptions are legally enforceable.
Again, this issue requires careful consideration by prospective parents. In some cases agencies encourage open adoption, but if you wish to adopt a child and open adoption makes you uncomfortable, you should make your concerns known early on.
Searching for Birth Parents
Whether an adopted child may want to know his or her birth parents does not come up at the time of adoption but the question is worth thinking about early on. State laws vary widely on whether adopted children can have access to the names of their biological parents. Often those parents do not want contact with the child. Even if they do, the situation can be problematic for all parties. The issue is not really within the scope of this discussion, but adoption agencies and intermediaries should be able to answer questions about it.
An Attorney Can Help You Hurdle Obstacles to the Adoption Process
The many hurdles to the adoption process can sometimes seem insurmountable, but keep in mind that they're in place to ensure the best possible outcome for all parties involved. Prospective adoptive parents can usually benefit from legal counsel. Get started today by reaching out to an experienced adoption law attorney near you.