Open Adoption

Many birth parents in newborn placements request periodic contact from the adoptive parents post placement. This contact is usually at a set interval, often annually on the child’s birthday or at Christmas time. The contact is commonly either a picture of the child or a picture of the child and a letter regarding the child’s progress. Sometimes, infrequent, in-person, visits are part of an agree-ment between the parties.

In relative and Department of Children’s Services adoptions of older children, the birth parent may have an ongoing pattern of contact with the child that predates the adoption. There is often a written or verbal agreement between the adoptive parents and the birth parents that the ongoing pattern of contact will continue.

There is obviously a continuum of contact ranging from exchange of limited written information through an intermediary to living together, in the case of some relative adoptions. Some open adoption agreements include extended family, such as birth grandparents. Most adoptions today include some degree of “openness”.

Even in a more closed adoption it is usually a good idea to set up a method to share important information (such as medical information) that may come up in the future. Exchange of information through the adoptive parents’ counsel, the adoption agency or direct contact are common arrangements. It is also increasingly common for adoptive parents to create password protected websites to post photos and updates for birth parents.

Most children grow up knowing who the birth mother or birth parents are and that they are his or her birth parents. In the most open cases, the birth parents’ relationship to the family is similar to that of a child’s aunt or uncle or family friends. However, open adoption is not co-parenting. All parenting duties, decisions, responsibilities and privileges rest solely with the adoptive parents. Successful open adoptions require a strong commitment to the relationship by all parties, good commu-nication, good boundary-setting and constant attention to the child’s needs.

The use of open adoption in step-parent and relative adoption is not new. Having a written agreement and child-centered attention to the relationship may be new. Access to resources like books and psychological research on the subject and professionals trained in the area is also new. In cases where clients are struggling with issues around open adoption, the attorney can refer them to these resources.

Open adoption is also available to facilitate settlement in contested termination actions of all kinds, including children in foster care. It is tricky to have a constructive relationship with a former adversary but committed adoptive parents and birth parents have made it work. However, there are parents, birth and adoptive who are so angry, polarized or dysfunctional they can never make an open adoption work. Resolution of a legal conflict with an open adoption agreement is not appropriate in these situations.

It is important that all parties understand that open adoption agreements are not legally en-forceable. It is a moral agreement only. A consent or an adoption decree cannot be conditional. The practice of “open adoptions” is recognized by the code, however it clearly states that all such agreements are in the sole discretion of the adoptive parents and that such agreements create no enforce-able rights.

It is very important to record the post-placement contact agreement in writing. Initially both parties tend to be vague about what they have in mind. Over time, the exact nature and frequency of contact is a common area of misunderstanding. The specific intervals of contact and the type of contact should be set out, as should the expectation of all parties that the agreement is not legally enforceable. When setting intervals of contact, the language “no less than___” or “at least ____” pro-vides flexibility, but also sets a minimum standard. A writing also encourages compliance by serv-ing as evidence of the original agreement that can be shared by either party with the adopted person when they are older.

Note: Some states do have a process to enforce post placement contact agreements.

Reprinted from Coppock on Tennessee Adoption Law With Forms & Statues, 6th Edition. Michie (LexisNexis) Publisher 2011.

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