Post Adoption Contact Agreements (PACAs) and Open Adoption
What is Open Adoption and What is a PACA?
Post adoption contact between birth parents and the adoptive family is also called “open adoption.” To say that an adoption is “open” only means that there is some path of contact between the birth parents and the adoptive family. The range of possibilities is broad. It could be permission to send letters periodically through an agency or an attorney, or it could be regular playdates. Contact can be established by verbal or written agreement.
A written agreement regarding post adoption contact is called a “PACA” in Tennessee, or post adoption contact agreement. A PACA can be a moral agreement or legally enforceable in court. So, when birth and prospective adoptive parents agree that they all want an “open adoption,” there is still a great deal left to decide.
The use of informal open adoption in step-parent and relative adoption is not new. Having words for it, a written agreement, resources like books and psychological research, professionals trained in the subject, and child-centered attention to management of the relationship is a twenty-first century development. Honesty with the child about being adopted and the identity of all the parties the child encounters is a baseline expectation in modern adoption.
Even in a more “closed adoption,” it is a good idea to set up a method to share important information, like 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. Tennessee DCS can also facilitate exchange of information in closed cases post adoption. It is still possible, but pretty uncommon, to have a completely closed adoption.
What Kind of Contact Do Birth Parents Have Post Adoption?
Post placement contact can be written, paper or electronic, and/or in person. It is usually at a set interval, often annually or bi-annually on the child’s birthday or at Christmas time, for example. It is increasingly common for adoptive parents to create password protected websites to post photos and updates for birth parents.
Birth parents in newborn placements often request periodic contact, most commonly through letters and pictures, sometimes text messaging or phone calls, and even an annual visit. But some prefer to leave things more open, not knowing what they will want in the future and not wanting to feel compelled to participate in a plan that becomes painful or uncomfortable.
In adoptions of older children, the birth parent may have an ongoing pattern of contact with the child that pre-dates the adoption. There can be an agreement that the ongoing pattern of contact will continue to the extent it is healthy for the child. Relative adoptions usually offer the most birth parent contact, and birth parents who have previously abused or neglected the child typically have the least, if any, contact.
Some open adoption agreements include extended family, most commonly birth grandparents. That pictures and information provided won’t be shared beyond specified people is a common provision. In almost every case of direct contact between the birth parents and the child, the adoptive parents are also present.
What Open Adoption is Not
Open adoption, even with an enforceable PACA, is not co-parenting. All parenting duties, decisions, rights, responsibilities and privileges rest solely with the adoptive parents. The birth parents’ legal relationship to the child is terminated. A birth parent who does not want to step back and allow the adoptive parents to be the child’s “real parents,” emotionally and legally, is not a good candidate for an open adoption.
Is Post Adoption Contact Good for an Adopted Child?
Post adoption contact done well, can be good for an adopted child; answering the child’s questions about heritage and identity, avoiding elaborate fantasies about the birth family, and demonstrating that the birth and adoptive families are all cooperating to support the child’s best interest. Done poorly, with unreasonable expectations, discord and power struggles, openness can be destructive to the child.
Successful open adoptions require a strong commitment to the relationship by all parties, clear communication, good boundary-setting and constant attention to the child’s needs.
Can Open Adoption Settle Contested Cases?
Open adoption is an option to facilitate settlement in contested termination actions, including children in foster care, though foster parents and children have special issues around PACAs. It is tricky to have a constructive relationship with a former adversary but committed adoptive parents and birth parents can make it work. However, a PACA is not an appropriate solution where a parent or parents are extremely angry, polarized or dysfunctional, or where the parent’s presence or voice is “triggering” to a traumatized child.
What Does Tennessee Law Say About Post Adoption Contact Agreements?
Some, but not all states also have a process to enforce post adoption contact agreements. In March 2019, Tennessee created a path for legally enforceable post adoption contact agreements for the first time. This law is found at T.C.A. §36-1-145.
Here are some facts about that law:
- Moral agreements for post-adoption contact, popular before enforceable contracts were permitted, may still be used provided that it clearly indicates that the PACA is a moral agreement only and not intended to be enforceable.
- Breach of a post adoption contract cannot be a reason to set aside a final order of adoption or rescind the surrender of a child or waiver of interest.
- Adoptive parents, birth parents or the child may petition a court to enforce a post adoption contract.
- Birth relatives, other than birth parents, may benefit from a contract for post adoption contact, but they are not parties to the contract and may not take enforcement action. The birth parent must create the PACA for the other birth relative.
- Modification and enforcement takes place under a 4-tiered structure. The first step is to write a letter to the other party describing the change or enforcement sought. If that does not resolve the issue, then the adoptive parents must secure an opinion as to the child’s best interest from a licensed psychological professional. If that does not prompt resolution, then the parties must mediate. Only upon two unsuccessful mediation sessions is court enforcement appropriate.
- The burden of proof is on the party seeking enforcement, and the standard of proof is preponderance of evidence.
- The primary test for determining whether modification or enforcement should be ordered is the best interest of the child.
- The cost of attempts, at resolution up to court action, are borne by the adoptive parents. The cost of litigation may be taxed by the court to either party, based upon good faith and financial means.
Writing a PACA
Regardless of whether a legally enforceable or moral post adoption contact agreement is used, it is recommended that the PACA be in writing. In newborn adoption in particular, initially, both parties tend to be vague about what they have in mind and will assume they share the same vision, but they may not. Over time, the exact nature and frequency of contact is a common area of misunderstanding. A written PACA also encourages compliance by serving as evidence of the original agreement that can be shared by either party with the adopted person when they are older.
When preparing a written PACA, the specific intervals of contact and the type of contact should be set out, as should the expectations of all parties. When setting intervals of contact, the language “no less than___” or “at least ____” provides flexibility, but also sets a minimum standard.