- In all Tennessee adoptions, the termination of all legal and biological parents’ parental rights is necessary. When an adoption is finalized, the adoptive parents become the child’s legal parents as if the child was actually born to them. After the finalization of the adoption, a new birth certificate is issued with the adoptive parents listed as mother and father and including any name changes of the child.
- With all adoptions, except for relatives, the child must be in the physical custody of the adoptive parents for six months prior to finalization of the adoption. (The final termination of parental rights usually occurs much sooner.) The six month period is so that an agency can supervise the placement and report to the court their evaluation of the placement.
Independent Adoption is an adoption that takes place without the assistance of an agency, public or private, except that the adoptive parents must employ an agency to conduct their home study. Independent adoption is sometimes called “private adoption” or “direct placement adoption.” Customarily, the adoptive parents’ attorney is the leader of a team of professionals that work on the case and handles the termination of parental rights and other legal work. A child must be in the adoptive parents physical custody for six months before the adoption is finalized. The final termination of parental rights usually occurs much sooner. When the parental rights of the birth parents are terminated, the adoptive parents become the child’s guardian until the adoption is finalized.
Private Agency / State Agency Adoption – The primary procedural difference between a private adoption and an agency or Department of Children’s Services adoption is that, in an agency or Department of Children’s Services adoption, the agency worker generally acts as the team leader and handles the termination of parental rights and the agency generally retains guardianship of the child until the adoption is finalized.
In Department of Children’s Services or agency cases, the attorney may or may not have an opportunity to review the documents evidencing termination of parental rights. If there is no opportunity to review these documents, it is not possible for the attorney to warrant that the birth parent’s rights have been effectively terminated.
The adoptive parents need a home study in this type of adoption as well, and usually the private agency or state agency will conduct that home study. A child must be in the adoptive parents physical custody for six months before the adoption is finalized, unless the child is related to the adoptive parents.
Step-Parent – Adoption by a step-parent is very common. After the adoption, the step-parent will legally become the child’s parent as if the child were born to him/her. This also means that if there is a divorce, custody and child support issues would be the same as if the step-parent were the child’s biological parent. The parental rights of any other legal or biological parent (the one not married to the step-parent) must be terminated before the step-parent can adopt. In Tennessee, it does NOT matter that a father is not on the birth certificate. A step-parent adoption is considered a relative adoption, so the home study and six month waiting period may be waived by the judge. However, some judges prefer that the couple be married 6 months – 1 year before the adoption is finalized.
Relative – Tennessee Code Annotated § 36-1-102(42) defines relative as: grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great aunts or uncles, or step parent or cousins of the first degree or any siblings of the whole or half degree or any spouse of the above listed relatives. There is no waiting period before the adoption can be finalized, and the home study may be waived by the judge. The child’s legal and biological parents’ parental rights must be terminated or they must consent.
International Adoption – Prospective adoptive parents sometimes go to another country and obtain guardianship (or their agency obtains guardianship) of a child they wish to adopt. If the adoption is not finalized in the other country, the adoption should be completed here in the U.S. Generally, the other country terminates parental rights before guardianship is given to the adoptive parents or agency. The child must be in the adoptive parents’ physical custody for six months before the case can be finalized and a home study is required.
ReAdoption – Prospective adoptive parents sometimes go to another country and actually complete an adoption in that country. When they return to the U.S., sometimes they are required to adopt the child again. Often, they choose to whether they are required to or not. Readoption will get the family a final decree of adoption from a court in the United States. Readoption also allows them to obtain a Report of Foreign Birth from Tennessee Vital Records. (If the child entered the U.S. with an IR-3 Visa and has a certificate of citizenship, new legislation allows the judge to waive a final hearing in these types of cases, should he/she choose to do so.)
Adult Adoption – Adults can be adopted. Sometimes we hear that “my aunt and uncle raised me and I want them to be my legal parents” or something similar. The main issues to understand regarding an adult adoption are:
- If two people are adopting, they must be married to one another and a married person cannot adopt without their spouse.
- The only way to retain one birth parent’s parental rights is for a step-parent adoption to occur. Otherwise, both birth parents’ parental rights are terminated.
- The birth parents do not have to consent to the adoption but they must be given notice of the action, unless they are deceased.
- When adopting an adult over 21, that person needs to be specifically named in wills or estate planning documents of the adoptive parents. The word “child” or “heirs” or the like, will not cover that adopted person if they were 21 or older at the time of the adoption.