Open Adoption Agreement

To clarify, there is no such thing as an “Open Adoption” as a type of adoption; this has become a very confusing and misused description of an adoption. In court, all adoptions are the same and governed by the state adoption statutes, which may or may not include an Open Adoption Agreement. This extra contract “rides” with the adoption and details contact between the birth family/parent(s), the adopted child(ren) and the adoptive family.

An open adoption agreement is a detailed contract between the birth parent(s) and the adoptive family. This contract is negotiated prior to finalization and is made part of the adoption; it is not something that can be added after the adoption. These agreements can be part of all types of adoption, but are most often seen in private and independent adoptions. For those of you planning to adopt from the foster care system, keep an eye out for this kind of agreement, they are not uncommon. These agreements normally detail the type of contact and role the birth parent’s play now and into the future; from day to day activities, letters, gifts, yearly vacations, phone calls, two sided contact or one sided contact. Like any contract, everything is negotiable. It cannot be said enough that these contracts are not legal in all states and may not always be in the best interest of all parties (including the children and other siblings).

Under these agreements, there may be a statement protecting the adoptive family. If at some point the adoptive family feels the contact or visits with the birth relatives is not in the best interest of the child, the adoptive parents may have the right to change the agreement. If an open adoption agreement is attached to children from the foster care system, the adoptive family may still be able to adopt without agreeing to the contact. It is imperative that you seek the advice of a lawyer specializing in Adoption Law, GLBT Family Law and is well versed in open adoption agreements.

You should also take the following into consideration when thinking about an open adoption agreement:

• Is this agreement in the best interest of the child(ren)?
• Is this type of contract suitable for our family?
• Is the contract for birth mom and birth dad the same? If not, can we live up to both agreements?
• Is contact with the birth family, in general, in everyone’s best interest?
• Is contact with other birth siblings in the best interest of our child(ren) and the other siblings?
• Is your wish to have a child over-shadowing your intentions for a balanced open adoption agreement?

We could make a list a mile long of items you should consider and ask of yourself, the workers involved, the family members and lawyers. Bottom line here is what is in the best interest of the adopted child(ren). While on the surface an open adoption agreement may sound good, it may not be in the end.

Just a quick added note here, if this section seems a bit hard on Open Adoption Agreement’s, it is not meant that way. Our intent is to open your eyes and make you think about all the aspects of this type of agreement. Open adoption agreements can be a very positive element of an adoption; there are families that would never adopt any other way. There are also those adoptions that this type of agreement would not be in the best interest of the child and other parties involved. Once all parties sign an open adoption agreement, it is legally enforceable in many states by all parties. This means as the adoptive parents, if at some time you do not want to fulfill any part of the contract, the birth parent(s)/family also named in the contract may be able to take legal action. Open Adoption Agreements are not legal in all states and each state has different rules and laws that govern these agreements. Walk into this agreement with your eyes open!

FYI -- there are a small number of private placement agencies, and even state adoption programs requiring an open adoption agreement when adopting a child from the foster care system. Families Like Ours is of the opinion that this is a mistake. Given the reasons a child often enters the foster system, simply requiring a family to agree to an open adoption (pre and post placement) is simply wrong. It may not be in the child or families (birth and adoptive) best interest. Open Adoption Agreement's should be used an option on the table, not a requirement in working with an adoptive family, placement or finalization.