[ModernDayBradyBunch]

I saw the post about contact agreements being legally binding. I was going to reply to that post with my question, but didn't want to overtake someone else's thread, so thought I'd start a new one.

Does anyone know specifically which states allow legally binding agreements? And also, is it the state that bmom lives in or the state that the aparents live in?

I hope someone out there can help with this!

[taramayrn]

I don't know, and am going to look it up, but I believe it's the state in which the adoption was finalized.

[taramayrn]

Maybe this will help:
Postadoption Contact Agreements Between Birth and Adoptive Families

[SchmennaLeigh]

There are approximately twenty-two. The States that permit enforceable contracts include Arizona, California, Connecticut, Florida, Indiana (for children over age 2), Louisiana, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Texas, Vermont (stepparent adoptions only), Washington, and West Virginia.

It is in the state that the adoption was finalized. So, not based on where people "live" as people move around quite often.

Note that they all vary in how they can be and are enforced with many leaving no way for anything to be done about it; just basic legalease on the books to make the state look more birth parent friendly.

[BarbaraB]

You really do need to look closely at the law of the individual state. I know Florida often appears on lists of states with post-adoption contact, but as a practical matter, it is very limited. It is available only for kids who are adopted through the state (that is, out of foster care). The relevant provision is section 63.0427, Florida Statutes. All it does is tell the court that the court has to "consider" allowing post-adoption contact with siblings or, with the consent of the adoptive parents, birth parents and/or other biological relatives. In practice what it often means is that siblings can keep visting each other, which hopefully has been happening while they're in foster care anyway. It does NOT set up open relationships between adoptive and birth families.

A birth parent making a voluntary adoption plan in Florida should be advised that any agreement for contact will be unenforceable.

Barbara

[billysmommy]

"A birth parent making a voluntary adoption plan in Florida should be advised that any agreement for contact will be unenforceable."

I am not so sure that this is true. When our son was adopted (in 2001, so it may be different now), if an open agreement was included in the final judgement of adoption, it was legally enforceable.

[SchmennaLeigh]

Florida law states:

What may be included in postadoption contact agreements?
Citation: Ann. Stat. § 63.0427

The court may be asked to consider the appropriateness of postadoption communication or contact, including, but not limited to, visits, written correspondence, or telephone calls.

Who may be a party to a postadoption contact agreement?
Citation: Ann. Stat. § 63.0427

The child shall have the right to have contact with his or her siblings or, upon agreement of the adoptive parents, the child shall have the right to have contact with the parents who have had their parental rights terminated or other specified biological relatives.

What is the role of the court in postadoption contact agreements?
Citation: Ann. Stat. § 63.0427

A child whose parents have had their parental rights terminated and whose custody has been awarded to the department pursuant to § 39.811, and who is the subject of a petition for adoption under this chapter, shall have the right to have the court consider the appropriateness of postadoption communication or contact, including, but not limited to, visits, written correspondence, or telephone calls, with his or her siblings or, upon agreement of the adoptive parents, the parents who have had their parental rights terminated or other specified biological relatives. The court shall consider the following in making such determination:

• Any orders of the court pursuant to § 39.811(7)
• Recommendations of the department, the foster parents if other than the adoptive parents, and the guardian ad litem
• Statements of the prospective adoptive parents
• Any other information deemed relevant and material by the court

If the court determines that the child's best interests will be served by postadoption communication or contact, the court shall so order, stating the nature and frequency for the communication or contact. This order shall be made a part of the final adoption order, but in no event shall the continuing validity of the adoption be contingent upon such postadoption communication or contact, nor shall the ability of the adoptive parents and child to change residence within or outside the State of Florida be impaired by such communication or contact.

Are agreements legally enforceable?

This issue is not addressed in the statutes reviewed.

How may an agreement be terminated or modified?
Citation: Ann. Stat. § 63.0427

The adoptive parent may, at any time, petition for review of a communication or contact order if the adoptive parent believes that the best interests of the adopted child are being compromised, and the court shall have authority to order the communication or contact to be terminated or modified, as the court deems to be in the best interests of the adopted child. As part of the review process, the court may order the parties to engage in mediation. The department shall not be required to be a party to such review.

In short? Domestic adoptions are NOT addressed in the state of Florida under post-adoption agreement statutes. Meaning that even if an agreement was signed in Florida, a known state to be unfriendly towards birth parent rights, the judge does not have to honor it in any way, shape or form since the wording of the statute covering the subject is speaking solely of those biological parents who have lost a child to state custody. It speaks NOTHING of birth parents who voluntarily relinquish. This is a loophole that I believe is purposeful though it may be an oversight. However, this is the loophole used to get out of said agreements.

FURTHERMORE, as you can see, the statute itself sides solely with the adoptive family by giving them AND ONLY THEM the ability to have the courts readdress the communication/contact order. AND, as it states, it is not addressed whether or not the contract is "legally enforceable," once again leaving birth parents without any ACTUAL recourse if the adoption is suddenly closed.

[BarbaraB]

Thanks!

The sentence that limits this to kids adopted from foster care is the following:
"A child whose parents have had their parental rights terminated and whose custody has been awarded to the department pursuant to § 39.811, and who is the subject of a petition for adoption under this chapter, shall have the right to have the court consider the appropriateness of postadoption communication or contact..."

The reference to § 39.811 is a reference to the dependency statute. A child who is placed voluntarily never comes within the scope of Chapter 39, and so this entire section of Chapter 63 does not apply to that type of placement.

Billysmommy, I am not aware of open adoption agreements ever being enforceable in FL. Our son was born in 2003 and it was clear that our agreement for contact was not enforceable. If you adopted out of foster care, that's a different story.

My personal view is that they SHOULD be enforceable. But that's another thread -- I just wanted to caution anyone reading this thread that even states with some "open adoption" provisions do not necessarily recognize voluntary agreements between birth parents and adoptive parents as enforceable later.

In FL, I do not believe this is an oversight. I think the law was passed primarily to deal with the situation where groups of siblings in foster care have to be split up for purposes of adoption. Most people will agree in that situation that the kids should be able to stay in touch with each other, but unfortunately, people tend to see that as a completely different issue from creating an adoption that is open from the beginning.

Barbara

[Mommy24]

I placed in Florida, and open adoptions, semi-open adoptions from the domestic infant adoption stand are NOT legally binding and if you know my story you know that I know that from a very personal standpoint.

[Mommy24]

Centraltxdad~ It appears to me that you see "Open adoption" as co-parenting and honestly, that is the furthest thing from the truth. The bottom line isn't that children only have 1 mother and 1 father, the real bottom line is that children have 1 set of parents, but actually adoptive children do have 2 mothers and 2 fathers. I guess it is all in how you want to see it.

[SchmennaLeigh]

Step-parent adoption is vastly different from domestic infant adoption.

[BarbaraB]

Hi CentralTXDad,

I don't think stepparent adoption is all that different, actually. The big difference is that the child is keeping one existing parent. But, as you said, our legal system recognizes one set of parents (although there are states that recognize two mothers or two fathers rather than one mother, one father). So, in a stepparent adoption, the non-custodial parent loses all rights and becomes, for most purposes, a legal stranger to the child.

I would guess that, in many situations, this does not happen unless there is some type of estrangement or abandonment of the parental role (note, I'm not saying all). In other words, if you have a non-custodial parent who is still an involved parent and who contributes financially to the child(ren)'s upbringing, it would be unlikely that the custodial parent would try to terminate their parental rights. So there would have been no perceived need, at least under the mind-set that has prevailed in adoption in recent decades, to have visitation or contact with the absent parent. The laws were not drafted to preserve those relationships, because if the relationships were strong, stepparent adoption would be less likely.

As pointed out earlier, the statutes that deal with open adoption were NOT all written with domestic infant adoption in mind. In FL, and I'm pretty sure in CA, along with at least some other states, they were really aimed at children who were already in state care -- children who might be older, who might have existing family ties or sibling relationships. So the reason for at least some of these laws was not so much creating any rights for the former parents, but giving children the right to have existing connections maintained -- particularly relationships with other children, who were easier to see as blameless in the whole situation.

But in some places, open adoption laws seem to be an attempt for the law to deal with the reality that some degree of contact before or after an adoption has become more and more normal.

A few years ago, in the context of grandparents' rights, the US Supreme Court said pretty clearly that parental rights will not be infringed on by forcing parents to agree to visitation with third parties, unless there is some harm that would result from denying the visitation. (This is really summarizing broadly; there was more to the opinion than that.) I'm not aware of any open adoption statutes being tested against that principle, but I think any such statute would have to be very carefully drafted to survive.

Having said that...most current open adoption statutes do not really force adoptive parents to agree to visitation. They allow adoptive parents to agree to visitation, and as part of the agreement, the adoptive parents sometimes also agree to mediate before changing the visitation or other contact (such as exchanging pictures). There is no statute anywhere in the US that would require adoptive parents to agree to visitation against their wishes, and no statute anywhere that would nullify or reverse an adoption just because the adoptive parents changed their mind about promised visitation.

Enough with the legalese. I think Mommy24 made a very important point, which is that open adoption agreements do not necessarily result in co-parenting or an "odd" relationship -- any odder than any other family relationship, anyway.

What is odd to me, as an adopted person and an adoptive parent, is that I would be allowed to meet a young woman at one of the most vulnerable and emotionally draining points of her life, make a promise to her that she would be able to know how her baby is, and then simply walk away from that promise.