Who May Adopt: Overview

You might be a legal guardian and want to adopt the child. Maybe you're a foster parent who wanted to adopt your foster child, but the biological parents refused to terminate their parental rights. Regardless of the scenario, your eligibility to adopt is the first element you'll address in the process.

The legal process for the adoption of a child is similar throughout the country. However, adoption laws vary from state to state. Minnesota's adoption laws are different than South Carolina's, for example. And, in the case of international adoptions, the laws vary from country to country. In addition, certain agencies may apply more restrictive criteria, when seeking prospective adoptive parents, than others.

However, a few general guidelines apply in most instances. Just remember the differences if you want to adopt out of the state or out of the country.

How Adoption Eligibility Is Determined

Adoption is a legal process. Before placing a child in an adoptive family, there are many steps adoptive parents take.

Pre-placement prospective parents attend orientations and complete a home study. Social workers collect background information and visit the prospective parents' homes during the home study. After the home study, the adoptive parents may become eligible for placement.

Choosing the Type of Adoption

Parents can choose from several types of adoption. The type of adoption will determine much of the adoption process.

In a private adoption (or independent adoption), the biological parents pick their child's parents. The birth family can use an adoption agency, but this is not a requirement. Open adoption is another choice. Adopted children have access to their birth parent's history in an open adoption. This access is helpful if the adopted child needs a medical history. In closed adoptions, the court seals the adoption records after the finalization of the adoption.

Although many licensed adoption agencies cater to specific groups, there are only two types of agencies: private and public.

Working With Private Adoption Agencies

Private agencies charge a fee and provide many adoption services. They can walk the birth mother and the prospective parents through the adoption process.

Working With Public Adoption Agencies

Public adoption agencies are part of the child welfare system or a local social services department. The adoption process with public agencies is different than with private agencies. First, the children are older and wards of the state in the foster care system. Often, child abuse is a reason these children enter the foster care system. Foster parents often adopt children if parental rights are severed.

Many states offer adoption assistance to encourage the adoption of children with special needs. Adoption assistance includes monthly payments to help adoptive parents care for a special needs child.

Post-Placement

After a court approves the adoption, the adoption case is closed. The adoptive parents can ask their local department of human services for a new birth certificate. The new certificate will include the adoptee's new name.

Who May Adopt: General Requirements

Single adults or a married couple can adopt. A stepparent may also adopt their spouse's child. Most courts are more interested in protecting a child's well-being. Approximately 17 states and the District of Columbia don't specify extra conditions.

Age Restrictions for Adoption

In these six states, you must be at least 18 years old to adopt:

• Kentucky
• Louisiana
• Montana
• New Jersey
• Tennessee
• Washington

These four states set the age at 21:

• Colorado
• Delaware
• Georgia
• Oklahoma

You must be at least 25 in Idaho to adopt, or alternatively, an adult 15 years (or more) older than the child.

A few states allow you to adopt under certain circumstances if you're a minor. For example, when you're a minor married to an adult adoptive parent. You may also adopt as a minor if you are the unmarried birth parent of the child.

Some states say you must be a certain number of years older than the adopted child. In the following six states, you must be at least ten years older than the child:

• California
• Georgia
• Nevada
• New Jersey
• South Dakota
• Utah

In Puerto Rico, you must be at least 14 years older than the child. In Idaho, you must be at least 25 years old or 15 years older than the child to be adopted.

In most stepparent adoptions, children over 10 must consent to the adoption.

Residency Requirements for Adoption

You must be a state resident to adopt in approximately 17 states. Your legal residence is the location of your permanent or primary home. States vary on how long you must be a resident before you can adopt. The required residency period ranges from 60 days to one year, depending on the state.

Some states have exceptions to the residency rules. For example, a nonresident in South Carolina and Indiana may adopt a child with special needs.

Domestic residency requirements apply to domestic adoption. They do not apply to international adoptions. Individual countries determine their requirements for intercountry adoption.

Determining whether you can adopt starts with understanding your state's adoption laws. Your age and residency are critical criteria no matter where you live. But other requirements and restrictions may apply. The following is a sampling of state adoption requirements:

California

In California, you must be 10 years older than the child. But this rule doesn't apply if you're one of the following:

• Stepparent
• Sister
• Brother
• Aunt
• Uncle
• First cousin

The court must also determine whether the adoption is in the child's best interest.

Florida

You can adopt if you're an unmarried adult in Florida. If you're married, your spouse must join in the adoption. But this requirement doesn't apply if your spouse is the child's parent and consents. The court can also excuse your spouse's failure to join in the adoption.

Ohio

To adopt in Ohio, you can be any of the following:

• An unmarried adult
• An unmarried minor parent of the child
• Husband and wife (at least one of whom is an adult), unless legally separated or under certain other circumstances

Pennsylvania

Anyone may adopt in Pennsylvania.

Texas

Any adult may adopt in Texas. If you're married, your spouse must join unless one of you is the child's parent.

The Indian Child Welfare Act

The purpose of the Indian Child Welfare Act (ICWA) is to ensure the placement of Native American children in homes that reflect their culture and values. Under the ICWA, public agencies must look for Native American family members or foster parents for Native American children.

Native American nations have a long history with the removal of Native children from their tribes. Given the cultural considerations, such placements are in the child's best interests.

Gay and Lesbian Adoptive Parent Eligibility

Before 2017, most state laws were silent on the issue of adoption by gay and lesbian individuals. Under the Supreme Court ruling in Pavan v. Smith, all states have to treat same-sex couples the same as opposite-sex couples in issuing birth certificates.

Before the Pavan ruling, Florida and Mississippi prohibited adoption by homosexual applicants. Utah barred adoption by persons who were cohabiting but not legally married unless the individual was a relative of the child or a recognized placement under the Indian Child Welfare Act. Utah law still indicates a preference for couples to be legally married with some exceptions. However, as same-sex marriage is legal in all states, gay married couples and heterosexual married couples are treated equally now in Utah.

Adoption Eligibility Checklist

The checklist below can be a good starting point to see whether you're personally in a position to adopt a child. As you read through each statement, check all that apply. Your adoption attorney can review your responses with you and help you determine the best route for making an addition to your family.

_____ I am eighteen years old or older. The age limits vary from state to state and from country to country. Some countries base their age restrictions on the difference between the child's and the parent's age.

_____ I have saved enough money to cover the costs of adoption. Adoptions can be costly, and saving in advance can be prudent. It is not, however, the only way to fund an adoption. Many people borrow from their retirement savings or against the equity in their homes. Some receive loans from family members. Sometimes, a church will sponsor an adoption for one of its parishioners. Employers, too, may offer adoption benefits. The adoption tax credit can offset some or all of the financial burden accompanying the adoption process. Note that some adoptions, such as those involving special needs children or children in domestic foster care, can be achieved for a lower cost or no cost.

_____ I earn enough money to cover the expenses of raising a child. We've all heard about how much it costs to raise a child to eighteen, to say nothing of the costs of a college education (although parents are not required to contribute to a child's college education). Income is an important consideration, especially in single-parent adoptions and those involving two parents, if one intends to stop working after the child's birth or after the child arrives.

_____ My employment is stable. This concern may be relevant to determining financial stability and a general finding of responsibility and maturity. Prospective adoptive parents must be able to provide their children with a stable home environment.

_____ I am in good health. Rules regarding specific disabilities are relaxed, but you must prove that you have a reasonable life expectancy and can manage the physical demands of child care.

_____ My home is clean and safe and can accommodate the needs of a child. You do not need to live in a palace to qualify to adopt. A modest home or apartment is acceptable as long as it will provide a safe environment and room for the child to play, explore, and grow. To ensure your home is this type of nurturing environment, all prospective adoptive parents must undergo a home study in their state before they are approved to proceed forward with the adoption. Learn more about home studies in FindLaw's Home Study FAQ article.

_____ I do not have a criminal record. Although minor infractions, like unpaid parking tickets, are generally of no consequence (even though they may require a written explanation), more severe charges are of more significant concern. This is especially true for child-related offenses. If you have past due child support, that alone would not disqualify you. The court will use the “best interests of the child" standard. They will consider the child's welfare and well-being. Previous child abuse charges will likely disqualify you as an adoptive parent. The adoption agency will conduct background checks to verify this information.

_____ I am a U.S. citizen. This fact is relevant, depending on the type of adoption you are seeking. For example, suppose you want to adopt a child from another country and then bring the child back to the United States to live. You must also be at least 25 years of age if you're unmarried. If you are married, you and your spouse must jointly adopt the child. Your spouse must also be a citizen. Or they must have legal status in the country. There are initial requirements. You must meet the eligibility requirements under federal law and the appropriate state laws.

Additional factors — such as religion, fertility status, and educational background — may be a necessary part of the home study and background check conducted by specific agencies, countries, or birth parents. For example, the birth mother and birth father may prefer that a married couple raise their baby. Or the birth family wants an adoptive family to have things in common with them. But they do not have general significance.

The most important qualification to be an adoptive parent is the hardest to quantify: your capacity to love and nurture the adopted child.

Can You Adopt a Child? Let an Attorney Help Your Family

Once you decide to adopt, you will face a new range of questions. You will probably need adoption assistance. Adoption laws and requirements vary from state to state. 

You may be a stepparent preparing for a stepparent adoption. Your adoptee could be from another country. Or you're nervous about the adoption home study. Whatever the situation, there are many steps in the process you will have to take before the finalization of the adoption.

For this reason, it's a good idea to speak with a local adoption attorney, or family law attorney, who can walk you through the adoption process. Legal advice can also help you plan for what happens after the adoption proceedings.