Open Adoption Agreements
Overview
The laws regarding continued contact in an open adoption vary by state. Some states practice what we think of as “Open Adoption,” however, the agreement between the birth family and adoptive parents is not legally binding. Neither the birth parents nor the adoptive parents are legally bound to continued contact. In these situations, the adoptive family has the final say as to the degree of contact.
In states that do not have legally binding open adoption “contracts,” there can still exist potential agreements drawn up between the birth parents and adoptive parents regarding the amount of contact before, during and after the finalization of the adoption. Once the parental rights of the birth parents have been terminated, as previously mentioned, the adoptive parents are the legal parents of the child and have the right to determine the amount of contact.
▶ In states that have legally binding agreements, there are specific expectations filed with the court similar to custody/visitation arrangements.
▶ In states that do not have legally-binding open adoption “contracts,” adoption agencies and attorneys can still draw up potential agreements between the birth parents and adoptive parents regarding the amount of contact before, during and after the finalization of the adoption.
State-specific information about open adoption agreements can be found here: https://www.childwelfare.gov/pubPDFs/cooperative.pdf
Open Adoption Agreements are also referred to as Postadoption Contact Arrangements, Cooperative Adoption Agreements, or Trust Agreements. Typically, birth parents and adoptive parents will decide what elements of the communication process are most important to them and incorporate these elements into their specific agreement. This is a careful and thoughtful process mediated by the agency social worker or attorney with both parties meeting together and arriving at a mutually satisfying agreement.
Key Considerations in Developing Open Adoption Agreements
▶ These communication agreements between the birth parents and adoptive parents are based on trust and an understanding that, ultimately, the adoptee should be at the center of these decisions. This is true whether the agreement is legally binding or not.
▶ While open adoption agreements are legally enforceable in some states, they may never be used to overturn an adoption or serve as a basis for revoking consent.
▶ Successful planning in open adoption practice with the birth parents and adoptive parents involves the discussion and creation of these Open Adoption Agreements, either directly or through their attorney or social worker.
▶ If an open adoption agreement is carefully and clearly developed, it can eliminate future disagreements or disputes regarding exactly what was agreed to regarding future contact.
▶ The birth parents and adoptive parents are asked to negotiate the amount of contact they wish to have with one another. In general, adoption agencies attempt to bring families together who have similar wishes regarding contact. For example, a birth mother who wants a fully disclosed adoption would not be shown the profile of an adoptive family who desires a confidential adoption.
▶ In making adoption agreements, it is important for the parties to state their expectations clearly. Parties should remember that these are expectations, not absolute obligations. By signing the document, the birth parents and adoptive parents are stating their intent to abide by these communication agreements. No one should ever be forced into an open adoption agreement with which he or she is not entirely comfortable.
▶ It is important that there be room in any agreement (especially if it is a written agreement) for the individuals to grow and change. No relationship is static, and people and their needs may change over the years. An open adoption agreement must be flexible enough to accommodate these changes (Silber & Dorner, p. 39).
▶ Some families agree to meet at a pre-arranged time (i.e., annually or bi-annually) to review, and perhaps renegotiate, their Open Adoption Agreements.
▶ Open Adoption Agreements can include the following :
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The type of communication that will occur between the triad members:
- Letters
- Telephone Calls
- Text Messages
- Photographs
- Exchanging videos
- Emails
- Social Media
- Visits
- How the contact will be conducted, whether directly or through an intermediary (an adoption agency or an attorney’s office)
- The amount and timing of communication or visits
- Whether the communication will be different in the first year or two of the adoptee’s life than it will be in the later years (sometimes birth parents want communication more often when the adoptee is an infant or toddler –i.e., quarterly until the age of three – and then annually until the adoptee is eighteen)
- The circumstances under which the family communicates or visits (for example, whether the birth parents can take the child without supervision, and if so, how old should the adoptee be?)
- How contact information will be maintained between the parties
- The type and frequency of contact between the extended family members or other children of either birth parent
- How information will be shared with the adoptee
- How birthdays or other special occasions will be celebrated
- If birth parents or members of the extended birth family will be included in school activities, church activities or sporting events as the adoptee gets older, and
- How the agreement will be modified to meet changes in the parties’ needs and circumstances.
Sample Questions for an Open Adoption Agreement
Pre-Birth Contact
□ Before the delivery, how often will we talk on the phone? How often will we visit?
□ If we visit, where will the visits take place?
□ Do my children or other family members want to meet or visit the adoptive parents?
□ Do I want the adoptive parents to accompany me to my prenatal visits?
□ When I am ready to go to the hospital and deliver, who will call the adoptive parents to inform them? Do I want them to come to the hospital right away or wait until after I deliver?
Post-Birth Contact
□ After the birth, who will make the first contact, the adoptive parents or me? How soon after the birth will I want to talk to them or see them?
□ During the first year, how often do I want letters and pictures sent to me?
□ During the first year, how often do I want to visit? Will the visits take place at my house, the adoptive parents’ house, or the counselor’s office?
□ If my children or other family members wish continued contact, what will the contact consist of and do the adoptive parents feel okay about this?
□ How will the child’s first birthday be celebrated?
□ Do we want to exchange Mother’s Day cards? (Some birth parents appreciate this gesture, while others find it unnecessary or unwelcome.)
□ After the first year, how often do I want to receive letters or pictures? How often do I want to visit?
□ If problems develop in our relationship, how will I resolve them? Are we both willing to seek counseling to resolve differences?