The Tennessee statutory law is found at Tennessee Code Annotated § 36-1-101 et. seq. Adoption law is also made through case law and various federal laws.
What is adoption? Adoption is the legal process of permanently transferring parental rights and responsibilities with respect to a child from the child’s biological family to the adoptive family “the same as if the child had been born to the parent(s), for all legal consequences and incidents of the biological relation of parents and children.”
Relative Status – The status of being or not being related to the child to be adopted has a large bearing on the legal processes involved. “Related” means grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great-aunts or great-uncles, or stepparent, or cousins of the first degree or any siblings of the whole or half-degree or any spouse of the above listed relatives;
Who may adopt?
- A Petitioner for adoption must be at least 18 years of age.
- Petitioner must have lived or maintained a regular place of abode for 6 consecutive months immediately preceding the filing of the adoption petition, unless the Petitioner seeks to adopt a related child. If a Petitioner is adopting a related child, they must only be a resident at the time the petition is filed.
- If a petitioner is in the military and stationed out of state, but who maintained a regular abode in Tennessee for 6 months prior to entry in the military, the residency requirement shall not apply.
- Citizens & Non-Citizens
- Single People
- The adoptive parents must have an approved home study, except in step parent and relative cases where the home study can be waived, and adult and intercountry readoption where a home study is not required at all.
Who may not adopt?
- One person of a married couple can not adopt without the other spouse adopting as well.
- Two unmarried people can not adopt the same child. (Example: Adult raised by foster mother would like for the foster mother and a biological uncle to be her legal parents. Unless the foster mother and uncle are married to one another, this is not possible.
- Sometimes a single parent, usually a mother, will want one of her relatives to adopt the child, terminating the birth father’s rights, but without terminating her own rights. While this may sometimes be in the best interest of the child, the requirement that both parents’ rights be terminated before adoption only excepts step parent adoptions, and therefore the desired adoption is not allowed.
- A non-related person without a home study.
- Dead people (Sometimes a grandmother, for example, will adopt and want her deceased husband included in the action. This is not allowed.)
Who may be adopted?
Any person, irrespective of place of birth, citizenship or place of residence, may be adopted or readopted in Tennessee, and an adult may be adopted. Federal law prohibits agencies receiving federal funds from requiring any child to wait for an adoptive placement for the purpose of racial matching.
While non U.S. citizens may be adopted in Tennessee, adoption by U.S. citizens will not necessarily mean that the adopted person, adult or child, is then eligible to become a U.S. citizen. Persons seeking to adopt to obtain an immigration advantage should consult an immigration attorney before pursuing adoption.
What is a homestudy?
A homestudy is an investigation of the prospective adoptive parents and their home to determine the fitness of prospective adoptive parents. Common inquiries include:
- Whether they can financially afford a child,
- Whether they are medically healthy enough to raise a child,
- Whether the prospective adoptive parents and their marriage appear stable (no violence, alcoholism, mental illness, criminal history, etc),
- Whether they can provide a safe home for a child.
A non-related prospective adoptive parent must obtain an approved home study in order to complete the adoption process. The homestudy is good for one year.
Where are adoptions filed? Chancery and Circuit Court, usually in the county where the adoptive parents’ reside.
Who’s Parental Rights Must be Terminated?
- Legal Parents (Mother and her husband (if married within 300 days of the child’s birth))
- A man who has been declared to be the father of the child by the adoption court subsequent to the filing of the petition to adopt but before the adoption is finalized.
- Putative biological father.
You do not need to terminate the parental rights of:
- A man who’s petition for paternity has been denied.
- A person who is dead.
- A sperm donor, in certain limited situations.
- A man who is on the birth certificate because the mother falsely stated that they were married, but who a court has found is neither the legal or biological father of the child.
- Under very limited circumstances, the parental rights of an unknown birth father may not have to be addressed. This determination can only be made by an attorney and ultimately by a judge.
How are parental rights terminated voluntarily?
- A man who is not on the child’s birth certificate nor married to the mother may sign a Waiver of Interest. That document may be signed pre-birth and is immediately irrevocable. It is a valid termination of parental rights as long as an adoption takes place. If signed pre-birth, the birth father must see an affidavit signed by the mother naming him as the child’s father before he signs the Waiver.
- A birth mother, legal father or biological father may sign a “surrender” before a judge or chancellor. The surrender takes place four days after the baby is born (Monday birth – Friday surrender). The surrender has a 3 day revocation period. After the revocation period, the surrender is irrevocable without a showing of fraud or duress. To accept a surrender, the adoptive parents must have an approved home study. The surrender may take place in any county before any circuit judge, juvenile judge or chancellor, or if the birth parent is in prison, the warden.
- Signing the Petition for Adoption as a Co-Petitioner. Signing the adoption petition is usually used in step-parent and relative cases. The petition is signed before a notary.
How are parental rights terminated involuntarily?
An involuntary termination of parental rights begins with a lawsuit filed by the prospective adoptive parents or an agency. The Petitioner must be prepared to prove particular grounds to terminate a parent’s rights and that termination of parental rights is in the child’s best interest.
The birth parent must then be served with the petition for terminating parental rights. This should occur by personal service. Personal service occurs when a properly issued summons and a copy of the petition to terminate parental rights is served on the parent by a process server or other qualified person. If personal service is not possible, the court may grant permission for service by publication.
If within 30 days after service is completed, the birth parent does not answer the petition, the petitioner can ask to win by default. The request for default is set on the court’s docket, all parties are notified of the hearing date and if the birth parent does not appear and defend, the default judgment is usually granted.
If the birth parent answers within 30 days the matter will be set for trial and each side will have an opportunity to be heard before the judge decides whether grounds exist and if so whether termination of parental rights is in the child’s best interest.
What expenses can be paid to a birth mother?
For a period of 90 days before the birth of the baby and for 45 days after surrender, a birth mother may receive payment for the following: reasonable and actual housing, utilities, transportation, maternity clothes and food. If the birth mother wants counseling, the adoptive parents are required to pay for that counseling for up to one year. The adoptive parents are also required to pay for the birth mother an attorney, if she chooses to have one. Adoptive parents also customarily pay for medicals not covered by insurance for the mother and baby. It is advisable that all payments be made through an attorney’s trust account. To pay something other than the listed items is a Class C felony punishable by 3-15 years in prison and a fine not to exceed $15,000.00.
Payment to an intermediary who matches the birth mother with the adoptive parents (facilitator) is illegal in Tennessee, unless that facilitator is a licensed child placing agency.
Never pay or receive money related to an adoption without clearing it with an attorney first.
Can I get a tax credit?
THE FOLLOWING TYPES OF ADOPTIONS ARE ELIGIBLE:
- Special Needs Adoptions
- Independent Adoptions
- Agency Adoptions
- Relative Adoptions (except step parent adoptions)
- State Agency Adoptions (in Tennessee this is the Department of Children’s Services)
- Intercountry Adoptions (only eligible if finalized)
- Expenses paid pursuing all above types of adoption except intercountry can be credited even if the adoption is never finalized.
THE FOLLOWING TYPES OF ADOPTIONS ARE NOT ELIGIBLE:
- Adoptions in connection with surrogacy arrangements
- Step parent adoptions
- Adult adoptions