The law in USA is mainly dictated by state law. However, some federal statutes may come into effect, plus federal constitutional principles are also followed. Across many states the general features of adoption law are as follows:
- Adoptive parents are vested with full parental rights.
- Consent is required.
- The best interests of the child must be considered.
- The adoption proceedings are confidential.
- Adoption is permanent.
What is adoption?
Adoption is a legal process by which a person takes another person into their family as their own and thereby acquires the rights, and incurs the responsibility of the parents in respect of such person.
In the United States, adoption is controlled by the state law. However, the federal constitutional and statutory law also has limited effect. From state to state, the general features of adoption law are very similar with slight variations.
Federal law and constitutional law
Under the US Constitution, parents have a right to custody, management, and interest in the care of their children. This has been held correct by the Supreme Court under the Due Process Clause of the 14th Amendment. Therefore, in order to terminate the biological parent’s rights, clear and convincing evidence must be provided.
Federal statutory law
There are some federal laws which help to regulate and support state adoption. An example of this would be the Federal Adoption Assistance and Child Welfare Act of 1980. This act provides funding to be given to state foster care and adoption assistance programs that duly qualify.
Rights & responsibilities of adoptive parents
The biological parent’s relationship with their children is severed when the child is adopted. Once the child is adopted they are then legally the child of the adoptive parent. Adoption is different from simple custody or guardianship, insofar as they do not give the legal status of parentage. Whereas, the adoption process creates obligations and legal rights under a number of federal and state laws. This this will include matters such as inheritance, tax laws, and social security amongst others.
Necessity for consent
Unless consent for the adoption is waived or forfeited, the adoption process requires that the biological parents knowingly and voluntarily consent to the adoption. The proceedings cannot be concluded unless this matter is dealt with first.
In all US states there is a requirement that the birth mother consents to the adoption of her child. Typically, the consent of the married father is also required.
If the father is not married to the birth mother, but has a paternal interest in the child, then the unwed father will not be denied the right to consent to an adoption. A number of states have a register where unwed fathers can register their contact information. This then allows them to obtain a notice of adoption proceedings if they are started.
Best interests of child
When looking at potential adoptive parents for the child, the focus will be on what are the best interests of the child rather than that of the adoptive parents, or indeed the birth parents.
Confidential nature of adoption proceedings
All records and indeed the adoption proceedings themselves are confidential. The general rules are as follows:
- The adoption proceedings are not open to the public.
- All records of the adoption proceedings are sealed.
- Unless left unsealed by mutual consent of both parties.
- The child’s original birth certificate is sealed.
Permanent nature of adoption
On completion of the adoption procedure, the adoptive parents have the same responsibilities and rights as a biological parent. Further, as dictated by state law, the adoption procedure cannot be reopened.