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A reader emailed me and asked why open adoptions were “illegal in some states.” I thought this would be a good time to disspell that rumor and clear up confusion on the matter. Here’s the truth: open adoption is never illegal. The confusion comes in when you factor in the point that open adoption agreements are not legally binding in all states.
Confusing, isn’t it? Let’s break it down.
I’ll reiterate: open adoptions are not illegal. No state has a law, rule, ammendment or other such legal mumbo-jumbo that makes open adoptions against the law. No matter where you live, you have a right to request and follow through with an open adoption plan. What that means, of course, is up to you. You can have a semi-open adoption with annual pictures or letters. You can talk on the phone or via email. You can have a fully open adoption with visits and all identifying information exchanged. Whatever you feel works for you and your child’s family is totally legal.
The problem is that only some states allow for legally binding open adoption agreements, not all. If you’re lucky enough to live in one of those states, you can feel somewhat secure in the fact that any agreement you sign with your child’s adoptive family will be acknowledged in a court of law. However, issues do exist as to how these agreements are upheld and whether or not action will be taken to make sure that parties are doing their part. Some states require mediation while others are kind of ambivalent as to what action can or should take place when an issue arises.
Of course, if you don’t live in a state that allows for legally binding open adoptions and you find that the other party is not living up to what they promised, you’re out of luck. That means that if the adoptive family decides to close the adoption and move to Zimbabwe without giving you their contact information, you have no recourse in a court of law. These states don’t regulate or care about the amount of contact you have, or lack, after your parental rights are terminated. Similarly, if you, as a birth parent, were to fail to uphold your agreement, the adoptive parents have no ability to make sure that you start doing what you promised. In these extreme cases, on either side of the adult triad, the child loses out.
There are ethical and moral considerations as to whether open adoptions should be legally binding in all states. Whatever the case, openness is never illegal. If you are considering an adoption plan, don’t be afraid that you are somehow breaking the law by wanting to have on-going contact with your child. You’re a-okay in that respect!
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