Contact with Biological Grandparents

Our children's biological grandparents would like more contact with our daughter than we think is in her best interest. What are our rights in this situation?

Know your rights when creating a contact agreement with biological grandparents.

It's not unusual for biological grandparents to be interested in maintaining contact after the adoption of their grandchild. In a case of a child adopted at an older age who had an established relationship with birth grandparents before the adoption, it is often in the child's best interest to maintain that relationship. Some adoptive parents, believing that children cannot have too many people who love them, incorporate biological grandparents into their child's life. The degree of contact may vary from occasional letters to frequent meetings.

That said, when a child is adopted, the rights of biological parents are legally terminated. Accordingly, the rights of biological grandparents, who derive their rights to the child through the birth parents, are also terminated. Therefore, biological grandparents do not have any enforceable rights to visitation with their grandchild after the adoption is finalized. An exception would be in the case of a written contract between the adoptive parents and the child's biological relatives guaranteeing visitation, in a state that allows such enforceable contracts.

Currently, 18 states allow adoptive parents to enter enforceable, written contact agreements with their child's biological relatives. See "Contact Contracts" for the complete list. Each state has its own requirements. Generally, there can be no agreement unless every party, including a child adopted over the age of 12, agrees, and the court finds that the agreement is in the child's best interest.

In states where statutes do not address post-adoption contact agreements, there is nothing to prevent adoptive and birth families from entering an agreement that will be based upon the good will and trust between the parties.

Work with an attorney to assure an agreement's conformity with your state's laws. Tailor it to your child's best interest. Provisions may vary greatly, from simple agreements that specify a yearly exchange of letters and pictures to agreements that a child will participate in birth family gatherings, visit at holiday times, or a specific number of times per year.

Dealing with Change

Open adoption relationships, as do all relationships, change over time. In the absence of a legal agreement, it's advised that all parties confer and reach a mutual decision based on the child's best interest. If the new terms differ significantly from the previous level of contact, perhaps now's the time to enter a formal agreement.

In a case where a legally enforceable agreement exists and where adoptive parents or biological relatives, grandparents in your case, seek to make changes to the existing agreement in the child's best interest, they can seek mediation or bring an action in court to ask that the existing contract be enforced or modified. Breach of an existing agreement does not affect the legality of the adoption or the adoptive parents' rights.

In most states, especially since the Supreme Court decision in Troxel v. Granville, 530 U.S. 37 (2000), the legal presumption is that parents are best suited to determine what is in their child's best interest. Any non-parent, including a biological grandparent, petitioning for visitation must overcome that presumption, in addition to proving that visitation would be in the best interest of the child. Under Troxel, the court must give special consideration to the wishes of the parents, as well as consider the best interest of the child, before granting visitation rights to grandparents.

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Contact Contracts

Eighteen states currently have laws that make written open adoption agreements legally enforceable.They are: Arizona, California, Connecticut, Florida, Indiana, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Dakota, Vermont, Washington, West Virginia.

Source: National Adoption Information Clearinghouse. Legislation is pending in other states, and statutes are constantly being revised, so check with your adoption attorney for the current status of legislation in your state.

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