CALIFORNIA ADOPTION: OPENING YOUR HOME

As of the 2000 census, there were a reported total of 2,058,915 adopted children in the United States - approximately 8% of all reported children.   In California alone, there were 167,190 reported adopted children under the age of 18, this is just over 2% of all children reported in the census for California.  The estimated number of adopted children increases when the statistics also include those adopted by stepparents or domestic partners.  California is in the forefront of this trend and the Long Beach Adoption Attorneys and the Los Angeles Guardianship Lawyers is experienced in the California adoption procedures.  Our California family law attorneys are ready to assist and answer any adoption issues and concerns that you may have. 

This growing trend demonstrates an increased interest in expanding the nuclear family and providing homes for many children that need care and attention.  People decide to adopt for a number of reasons such as helping out another family member that cannot take care of a child; inability to have children; or simply to make sure that a stepchild knows they are part of the new family.  California has developed procedures that enable people to include a child in their families on both a temporary and permanent basis.  This article will provide a brief overview of this California process.  This article should not replace the advice of competent legal counsel.  Its sole purpose is to provide general information about the possibilities within California law.  The first thing to note is the distinction between the temporary and a permanent placement of a child. 

Guardianship v. Adoption:

A guardianship is a court appointed position that gives a non-parent temporary custody of the child while the biological parents are unable to provide proper care.  The court will end the guardianship once the parents are again able to take care of the child.  Meanwhile, the guardian is supervised by the court; and the parents still have the right to communicate and participate in the child’s life.   The guardian will have both legal and physical custody of the child during this time.

An individual may be appointed as guardian while the parent or parents suffering from a serious physical illness, have to leave the country due to military duties, or are unable to care for the child due to a rehabilitation program, drug/alcohol abuse problem, history of abuse, or are incarcerated.  The court will look at the best interest of the child to ensure that the legal guardian is able to care for the child during this time.

A legal guardian can be appointed without a court order.  This is done if the biological parents of a child issue a notarized letter appointing an individual as the guardian of the child.  However, this can be revoked at any time.  It is often better to have a court order appointing the guardian as some schools, medical facilities and insurance companies are less likely to accept “just a letter.”

The guardianship will end when any one of the following occurs:  Child turns 18; child is adopted, marries, enters military or is emancipated; court ends the guardianship; new guardian is named; child dies.

In the case of an adoption, the biological parents either voluntarily or by court order relinquish all parental rights to the child.  Once the adoption is final, the adoptive parents have full legal and physical custody of the child and generally no additional social services supervision is required after the initial 6 months.  This is a permanent placement for the child.

Who Can Adopt:

Now that we have distinguished the temporary from the permanent, the next question is who is able to adopt.   Many people are concerned that being single, older or not having a large income may disqualify them from adoption.  Although these issues are considered, they are not the deciding factors.   Because adoptions can be completed through private agencies, or independently with the biological parents, the requirements will vary with the type of adoption and the particular agency’s requirements.  The California Family Code only requires that in order to complete an adoption:

1. The adopting party must be an adult at least 10 years older than the adoptive child;
2. Consent of the child if they are over the age of 12, must be obtained; and
3. If married, the prospective adopting parents must BOTH consent to the adoption.

 In addition to these statutory requirements, an agency will also consider these primary factors: Marital status, criminal record, medical background, employment, and living environment.  The adoptive parent may be single, but the agency will consider whether or not and to what extent there is a family or another social network to provide support for the child.  The review of the living environment and medical background may include interviews with other people living in the household and close family that will have extensive interaction with the child.

These factors are not exclusive, meaning that a court, adoption agency representative, or social services may also review additional considerations.  These are simply the basics.  The goal is to ensure that the child is placed in a home that is safe, stable and eager to incorporate a new child into the family.

Three Main Types of Adoption in California:

An adoption can be either open, meaning the biological and adoptive parents know each other;  or closed, meaning the biological and adoptive parents have no interaction and as a general rule, no contact with each other.  There are three basic types of adoption.

Agency (public/private) Adoption:

An agency adoption is the situation in which a licensed private or public adoption agency or the California Department of Social Services (CDSS) places a child with adoptive parents.  In these scenarios, the biological parent has either voluntarily terminated their parental rights or through a legal proceeding the court has terminated the parental rights after a hearing or trial.  The process requires that the adopting parents submit an application and are evaluated both prior to and six months after the adoption is complete by a social worker.

The Adoption Procedure:

1. Meet with a representative of the licensed adoption agency
2. Complete the required orientation
3. Meet with an adoption facilitator to discuss the type of child the parents are able to care for, i.e. ability to provide safe healthy environment for a child of a certain age, with or without disabilities, behavioral concerns, etc.
4. Complete the application process
5. Complete the family assessment provided by the agency
6. File the request for adoption or adoption agreement with the court
7. Receive the court order of adoption
8. Complete the six month post-adoption evaluation

Although it sounds simple, the process may take six months to a year and a half.  This time can be delayed based on the time it takes to match a child with the appropriate family.  This is the most standard method of adopting children in California and there are a number of private as well as public adoption agencies throughout the state.  It is very important that you use a licensed adoption agency to ensure for the placement and matching of the child.

Independent Adoption

An independent adoption involves close interaction the biological parent.  In this case, the biological parent or parents select the adoptive parents.   Often this involves the participation of an adoption facilitator.  An adoption facilitator is an individual, not a licensed adoption agent that works to match either adoptive parents with children or help biological parents find adoptive parents for their child.  An adoption facilitator may be paid for their services, but can also be an individual who personally knows either the adoptive parents, biological parents or both.  By law, a biological parent has 30 days in which they can change their mind and not move forward with the adoption proceedings. 

This type of adoption is often considered an “open” adoption.  Unlike the agency or CDSS adoption, the adoptive and biological parents know one another.  The parties will often have had contact before, and at times, after the adoption is complete.  This type of adoption is also most common when a close relative is taking over the care of a child on a permanent basis.  The level of contact will be limited by what the parties believe to be in the best interest of the child.

Stepparent/Domestic Partner Adoption

A very common form of adoption is the stepparent adoption.  This is where one spouse is the birth parent of a child from a previous marriage or relationship, and the couple would like for the new spouse to legally adopt the child.  Under the Domestic Partnership Act, this same method is used for a domestic partner to adopt the child of their partner.  This is generally easier than a normal adoption; however it still requires certain steps and the main hurdle – consent – to be overcome.

If the other birth parent has not already voluntarily relinquished parental rights, in most cases the stepparent/partner must obtain their consent in order for the adoption to take place.  There are limited circumstances in which consent is not required:

1. The birth parent has abandoned the child for over a year and has not paid any child support; or
2. The birth parent has not seen or talked to the child

In these cases, you may not be required to obtain consent, but you will still have to notify the birth parent of the request for adoption.  The birth parent will have the opportunity to appear and object to the adoption.

If consent is required, you must obtain it from the birth parent.  In cases where you are unable to locate the birth parent, you must make all efforts to attempt to locate them prior to filing the request for adoption.  All methods of the attempt should be documented and submitted to the court to request permission to request the adoption without the consent.  If the birth parent cannot be located you will also have to obtain a court order terminating the other parent’s parental rights in addition to requesting the adoption.  It is vitally necessary that you have done all that is possible to contact the parent.  If the birth parent learns of the adoption and can show that not all possible steps were taken, the adoption may be cancelled.

In cases where the other birth parent is unknown or there is a doubt, a paternity suit should be initiated.  Where the child was conceived by artificial insemination, if the donor is known, they are considered the birth parent and must be notified and consent to the adoption.  If the donor was anonymous, you must provide supporting documentation from the doctor and/or sperm bank confirming that the artificial insemination was on your own.

International Adoption

An international adoption is one in which the child is foreign born and at least one adoptive parent is a US citizen.  The rules and procedures regulating an international adoption are governed by California state laws, federal immigration laws, and the laws of the child’s birth country.  Foreign-born children that are adopted by a United States citizen may receive retroactive citizenship if:

1. At least one parent is a United States citizen
2. The child is under 18 years old
3. The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

An international adoption can be done as an independent adoption.   However, due to the legal formalities of two different countries, it is often prudent to go through an international adoption agency that can handle the matching, foreign court requirements and foreign immigration requirements as well.  To complete an adoption, the proceedings must be completed in both the foreign country as well as in California.

The Court Proceeding

Once the adoption requirements for the different agencies or independent adoption agreements are reached, the adoption itself must be approved and ordered by the court.  Unless there is a complication regarding paternity, inability to obtain consent from a birth parent (in a stepchild or domestic partner adoption), or international law this is a relatively simple process.  If the child is under the age of 12, then the adopting parents must file an adoption request.   If the child is over 12 then an adoption agreement signed by both the child and the adoptive parent(s) must be filed with the court.

A social worker, if one has been assigned to your adoption, will file a report with the court providing information about the adoptive parents, child and have the adoptive parents fill out a form and complete a final interview.  The social worker will then send you a copy of the report.

After receipt of the report, you can schedule a hearing with the court clerk to finalize the adoption.  At the hearing the judge will review the documents and then approve the adoption if all is in order.  At this time, you would also file any consent forms to be on record if you want the child to have contact with their birth family at a later time.  At the end of the hearing the judge will sign the adoption order and the proceedings will be complete.

Conclusion

This is a very elementary explanation of California adoption proceedings.  If you have more detailed questions or a pending adoption, we recommend that you contact a legal professional to help you with this great opportunity to expand your family.  The attorneys of Smith & Garg, PC are willing and eager to answer any questions you may have.

Should you or your family members and friends have any questions or would like to learn about the California adoption procedures and process, please contact our experienced Long Beach Family Law Attorneys and our Los Angeles and Orange County Adoption Lawyers at 562-590-9033 or on our website contact information.