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Is Open Adoption Right for Your Family?

A legal guide to open adoptions and open-adoption agreements.



When curious friends ask if yours is an “open adoption,” chances are, they wonder whether your child’s birthmother joins you for Thanksgiving dinner. Although most domestic adoptions are, in fact, open, very few families have that kind of relationship with their child’s biological relatives. An open adoption simply means that the birthmother and the adoptive family know each other’s identities. Beyond that, it can mean almost anything.

Unfortunately, some families rule out a domestic adoption plan once they hear that almost all of them are open, because they are uncomfortable with the idea of a birthmother’s continuing presence in their lives. But an open adoption may just mean sending a letter and picture to the birthmother once a year. While the thought of adding a holiday place setting is just too much for many parents, most are perfectly willing to send photos and letters.

No matter what the arrangement, open adoption does not mean co-parenting. Study after study confirms that adopted children experience no confusion about who is the “real parent” as a result of being introduced to their birthmothers. Bottom line: Parenting is not a zero-sum equation, where the more open the adoption, the less you are the real parent. Still, as a new parent or parent-to-be, it is difficult not to feel threatened by the prospect of future contact with your child’s biological relatives. Take comfort in the fact that, virtually without exception, families involved in open adoptions report positive experiences.

How much contact—and how often?
You and your family need to have a conversation about what degree of continuing contact is appropriate for your family. That conversation should take place before you are matched with a birthmother, when your conclusions will be logical, rather than emotional. If you feel that visits with the birthmother are out of the question, be honest. If you agree to more contact than you can manage, that contact will become a source of resentment.


Inside Look At Open Adoption Agreements
Adapt the agreement template you’ll find at adoptivefamilies.com/
files/SampleCCA.doc
.

Open adoption agreements, also known as post-adoption contact agreements, are legally binding in many states, and some courts in states where such agreements are not legally binding enforce them anyway. While an adoption cannot be overturned because of either party’s failure to comply, experts in the field generally agree that agreements are important for all adopting families to have.

Download our sample Agreement and Order for Contact and Communication, courtesy of adoption attorney Janna J. Annest, to help you draw up the conditions in your family’s agreement.


Do not assume that every birthmother will lobby for as much contact as possible, and that you will need to bargain her down. Many birthmothers prefer to make a clean break. You may need to ask her to keep you up-to-date with her contact information, in case you or your child ever needs or wants it down the road.

On the other hand, we live in the Facebook era. Social networking sites and e-mail are the default methods of communication, and they may seem like the best ways to stay in touch with your child’s birthmother. Certainly, it is far easier to post or e-mail photos than it is to physically print and mail them, and letter writing seems quaint these days.

But before you start an e-relationship with the birthmother, consider the implied obligations that go along with it. Are you prepared to answer e-mails as often as she sends them? Do you mind having semi-public discussions about your family? Physical letters might seem formal, but they establish reliable boundaries.

Expect changes in contact level
Will the amount of contact change over time? Almost always, the answer is yes. Usually, the terms of continuing contact are discussed while the child is very young, or not yet born, when all parties to the adoption are caught up in what is probably the most significant event of their lives. It can seem like nothing else will ever matter.

But just as surely as your tiny infant will soon be a little person with his own ideas and opinions, his birthmother’s circumstances will change, too. By the time your child is a tween, his birthmother will have lived another decade, gone to school, held jobs, maybe even had other children. Even birthmothers who are eager to visit when a child is young tend to grow more distant over time, as the adoption experience becomes less dominant.

Creating contact agreements
In Washington, where I practice, parties to private adoptions often outline the terms of their ongoing contact in a document called an Agreement and Order for Contact and Communication. This is a contract that outlines the minimum terms of future contact.

Typical agreements include precise descriptions of the number and type of contacts per year. For instance, “the adoptive parents shall send the birthmother pictures of the child and a letter no fewer than two times per year until the child is five years old, and, thereafter, no fewer than one time per year,” or “the birthmother shall be entitled to visit the child at the adoptive parents’ home no fewer than two times per year, on mutually agreeable dates and for no fewer than three hours per visit.”

Some people choose to route letters through a third party or an attorney, and some agreements contain promises to update contact information as necessary. Often, the parties stipulate that, until the child is 18 years old, all communication from the birthmother will be through the adoptive parents and not directly to the child, and that, when the child turns 18, he or she will determine the nature of future contact.

No particular terms are required. Rather, the contents of the agreement simply reflect the mutual wishes of the birthmother and the adoptive family. If the parties agree that other biological relatives can visit the child, the contract could provide, for example, that “members of the birthmother’s immediate family may accompany her on such visits, provided the adoptive parents are notified in advance and agree.”

The agreement also makes clear that failing to comply with its terms does not provide a basis for invalidating the adoption. Although they are enforceable in court, such agreements are not designed to set the stage for legal proceedings. Rather, such agreements ensure that the birth family and adoptive family have the same understanding about what is going to happen in the future.

A birthmother might understand a promise to “keep you posted” as a daylong visit every month, while the adoptive family might think it means sending a Christmas card. Encouraging the parties to put their plan in writing establishes clear and reliable expectations and can eliminate awkward requests or hard feelings. Of course, such agreements set minimums, and if the parties want to increase the amount of contact, they may do so without involving any courts or lawyers.

Janna J. Annest is an adoptive mom and adoption attorney at Mills Meyers Swartling, in Seattle, Washington. You can reach her at annestadopt.com.

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