Live Webinar! U.S. Domestic Adoptions of Foreign-born Children: The consequences of not complying with the Hague Adoption Convention

Open Adoption: Georgia passes Post-Adoption Contact Agreement Legislation

Open Adoption:  Georgia passes Post-Adoption Contact Agreement Legislation

History: Closed Adoption

 In modern day America, most adoptions are now open adoptions.  Open adoption means that prospective adoptive parents have some level of contact or knowledge of the birth parents and vice-versa.  Contrary to popular belief, it does not have to mean visitation.  Instead, it may be as little as the sharing of medical information between parties or yearly emails or pictures sent through an agency or attorney.   Calling an adoption “open” does not require commitment to future direct contact or any set rules on how much contact, if any, there should be.  Instead, it merely lifts the veil of secrecy that surrounded the adoptions in the early to mid 1900s.  At that time, there were a plethora of waiting infants who needed good homes, and a lack of prospective adoptive parents.  The thought was that middle class parents were afraid to take in these children because of a fear of the children growing up to be similar to their “delinquent” parents.  Therefore, the social agencies were put in as a middle man to do knowledgeable matching and separate birth families from adoptive family.[1] 

Open Adoption Generally

Much research has debunked the theories of the early to mid 1900’s that promoted closed adoptions.[2]  Most importantly, studies have shown that knowledge of medical information from birth families can be extremely important to the raising of a healthy adoptive child.  Furthermore, longitudinal studies show that adoptive children do better when raised in an open adoption situation and those adoptions are less prone to dissolution.  When an adoption is cloaked in secrecy, children often assumed the worse about their biological family and heritage.  When adoptions are open, even with low levels of openness, a child can be reassured that the reason he or she was put up for adoption was because of a loving choice made by birthparents who wanted the child to have a better life than what the biological family could provide at that time.[3] Furthermore, most birth parents have a desire to pick the adoptive parents for their children and agree that even a low level of contact or information post-adoption helps them to heal when they know the child that they put up for adoption is thriving.[4]

State Laws on Post Adoption Contact Agreements

When adoptions began to take place in an open environment, many states reacted with legislation to discuss post-adoption contact between parties to an adoption.  While adoption practitioners, particularly attorneys, became more and more on board with open adoptions, many lawmakers wanted to make sure that these ongoing relationships in no way interfered with the finality of the adoptions.  Thus, some states that allow post-adoptions agreements made them unenforceable in court or mentioned that visitation could not be included in the agreement.[5]  Furthermore, many of the states required language to be added into agreements that put all parties on notice that failure to comply with the agreement would not in any way give cause to set-aside or vacate an adoption or rescind a surrender made in connection with the adoption.  Some states required that the agreements only apply to children who were adopted out of foster care,[6]  where the thought is that the children are mostly older, have significant relationships and ties to their biological relatives, and would therefore, benefit from ongoing enforceable contact with biological family-members.  Other states limit enforceable contact agreements to non-agency adoptions, such as step-parent adoptions.[7] 

Georgia’s History with Open Adoption

Up until May 7, 2013, Georgia was similar to approximately twenty-three other states who had a reunion registry, but no law allowing for enforceable post-adoption contact agreements.  The reunion registry allows biological parents to sign up with a central database where adopted children can retrieve their contact information once turning 21 years old.  Additionally, practitioners would advise clients of the option of entering into a non-binding post-adoption contact agreement.  Though these were non-enforceable in court, it helped start dialogue with birth parents in order to determine where the parties felt comfortable in terms of future contact. 

HB 21

On May 7, 2013, Governor Deal signed into law HB 21, a bill introduced in the Georgia House of Representatives by Rep. Mary Margaret Oliver, to provide for enforceable post-adoption contact agreements.  This new law creates a voluntary post-adoption contract between the adopting parents and the child’s birth relatives. The new code language empowers children over 14 years of age to participate in the contract as they are considered parties to the agreement.  It is important to note that this new law in Georgia allows for enforceable post-adoption agreements, but in no way requires them.  In order for HB 21 to apply to an adoption, all parties have to be in agreement with the contract. 

Post adoption contracts allows for a meeting of the minds of the parties prior to the completion of the adoption.  In many ways, this is great step forward for those entering into adoption because it helps allay the fear of birth parents who have trepidation about never knowing what happened to the child to whom they gave birth.  On the flip side, it can also reduce the apprehension of adoptive parents who are not sure what to expect from the birth parents following the adoption.  In most cases, birth parents ask for at least six months of no contact so that they can go through a morning period to get past the loss of parenting the child.  Then most will only ask for occasionally pictures or updates.  Of course, with older children, different arrangements are often made on a case by case basis.  The bottom line, however, is that getting all the parties together ahead of time to discuss expectations, can have a greatly beneficial effect on all involved.  Many arrangements need to change over time to meet the changing needs of both families and the child.  Modifications are permitted under this new law. 

Another main benefit of HB 21 is that it allows for a provision for medical information to be shared among parties.  Many practitioners have been adding these clauses into the unenforceable agreements for future for contact for many years.  Having medical information clauses in enforceable agreements simply adds another layer of protection for adoptees who may need information from biological families as they grow. 

Similar to other states’ laws on post adoption agreements, the new Georgia law requires a clause in the agreements to state clearly that violation of the agreement will in no way effect the finality of the adoption.  Parties may petition a court to seek enforcement or modification of the agreement, if the agreement entered into does not expressly waive this right.   The original adoption court will make a determinations concerning modification based on the best interest of the child. 

The heart of this new law, and the evolution of the States’ policy on open adoption, is to best serve the adopted child and the other parties to adoption.[8]  Enforceable post adoption contact agreements are another step forward to recognize the physical and emotional benefits of some level of continuing contact between parties to an adoption.

---

[1] Kathleen Silber & Phylis Speedlin, Dear Birthmother: Thank you for our baby, Corona Publishing, 1997.Read more: http://www.adoptionhelp.org/open-adoption/history#ixzz2SuY5eyLY.

[2] Siegel, Deborah H., Ph.D. and Livingston Smith, Susan, LCSW, Openness in Adoption: From Secrecy and Stigma to Knowledge and Connection, 2012 March, Evan B. Donaldson Adoption Institute.

[3] Siegel, Debrah H., Growing up in Open Adoption: Young Adults’ Perspectives, Families in Society, April–June 2012, available at http://www.familiesinsociety.org/ShowAbstract.asp?docid=4198, (findings from a study of young adults who grew up in open adoptions confirms the benefits of open adoption. Those surveyed appreciated the ability to access and learn about their birth families and regarded relationship challenges as opportunities to explore identity, expand family, and process feelings. Each open adoption was unique and many agreements needed periodic adjustment. )

[4] Id. Finding “[w]omen who have placed their infants for adoption – and then have ongoing contact with their children – report less grief, regret and worry, as well as more peace of mind.”

[5] Ind. Ann.Code §§ 31-19-16-3, 16-9, 16.5-1,16.5-2 (2006). For children adopted at age two and under the agreements were permitted, but unenforceable in court and could not include visitation.  For children over two years of age at the time of adoption, agreements could be enforceable and include visitation when the parents voluntarily surrendered their rights to the child. 

[6] Conn. Gen. Stat §45a-715 (2009) and R.R.S. Neb § 43-156 (2006) and Fla. Stat. § 63.0427 (2011).

[7] Vt. Ann. Stat. Tit. 15A, §4-112 (2008).

[8] The parties are often referred to as the adoption “triad,” which refers to the child, birth family and adoptive family.  Under HB 21, the parties may also be defined as siblings, half-siblings and grandparents.