FREE CONSULTATION • CALL US 24 / 7 212-994-7777


Adoption and Eligibility

Adoption refers to a process that requires court approval in order for an adult to become the legal guardian of a child that is not their biological child. Each state has its own requirements and conditions that prospective parents must meet before the adoption can take place. Both public and private agencies offer adoption services, but adoption can also take place through a completely private process that does not involve an agency at all.

The purpose of adoption is to establish a formal, legal parent-child relationship. The adopted child is granted all rights as if they were their adoptive parents' biological child. These rights include child support and custody obligations and other rights in the event of a divorce. These rights also include inheritance rights under the laws of intestacy, or a will or trust. Through the adoption process, the parental rights and obligations are transferred from the child's existing legal or biological parents to the adoptive parents.

The adoption process ultimately consists of obtaining court approval to adopt the child, and can be further broken down as:

  • A petition for adoption is filed with a family court;
  • The adoptive parents provide required notice of the petition to all legally interested parties, such as the birth parents; and
  • A hearing in which the adoptive parents appear before a judge and plead their case for adoption approval.

Whether an adoption is approved is dependent upon the prospective parent's eligibility to adopt a child. Eligibility laws vary by state, and if the adoption is from an international agency, the laws will also vary by country. Additionally, certain agencies may have their own set of eligibility criteria for the prospective parents to meet. The adopting party may be an individual, or a married couple.

In general, any person may adopt a child as long as they meet the following general guidelines:

  • They are financially capable of supporting a child;
  • They have saved enough money to cover the cost of the adoption;
  • They are of legal age and are capable of making legal decisions;
  • They have a generally good background, such as no serious criminal record;
  • They have a home that is safe and clean, in order to accommodate the needs of a child; and
  • They are in good health with a good life expectancy so as to reduce the chances of leaving the child without a parent as a minor. 

Adoption Process Basics

Adoption is the legal process of assuming parental responsibilities over a child. Through the adoption process, parental rights and obligations are transferred from the existing legal or biological parents, to the adoptive parents. The process of adoption consists of obtaining court approval to the adoption, The court gives its approval after a legal proceeding known as an adoption hearing.

What Steps Does the Adoption Process Consist of?

Each of the above types of adoption processes consists of the following steps:

  • The filing of a petition for adoption: In the petition for adoption, the individual(s) seeking to adopt provides information for a family court judge's review. The information includes basic information such as names, ages and addresses of the birth parents, the child, and the adoptive parents. The petition also typically includes the following:
    • A statement made by the adoptive parents that they understand their rights and obligations with respect to the child.
    • The legal grounds or reason for termination of the biological parent's rights.
    • A description of the nature of the relationship between the adoptive parents and child. This relationship may be familial (such as a stepparent relationship) or nonfamilial, meaning the child and the adoptive parents are not related.
    • A statement that the best interests of the child are being served by the adoption;
  • Notice of the petition: In this step, the adoptive parents provide required notice of the petition to all legally interested parties. Legally interested parties include the birth parents, the adoptive parent, and, depending on their age, the child; and
  • The hearing: At the hearing, the adoptive parents appear before the judge. The judge questions the parents, under oath, as to whether they understand their rights and responsibilities as adoptive parents. If the judge finds, that the adoption is in the child's best interest, the judge issues an order of adoption. This order is the formal court approval of the adoption. 

Types of Adoption

The types of adoptions include: 

  • Agency Adoptions. Both public and private agencies offer adoption services. Public agencies are run by the state. Private agencies are regulated by the state. Both public and private agencies have the power to place children with potential adoptive parents. These agencies tend to differ as to what children they place for adoption. Agency adoptions, whether public or private, can be less expensive than other forms of adoption. However, these adoptions may take a significant amount of time to complete;
    • Public adoption agencies often place children who do not have parents and instead are in the care of the state. These children may be orphans, or children who have been abandoned. These children may also be children who have been removed from their parents' care because the parents committed child abuse.. 
    • Private adoption agencies, in contrast, are run by organizations. These may be charitable, or religious in nature. Private agencies place children that were brought to these agencies by parents or individuals with parental rights to be adopted. These agencies then work with prospective adoptive parents to find a new home for the child.
  • Independent Adoptions.  Independent adoptions, commonly referred to as private adoptions, involve a direct agreement between a biological mother and the parents seeking to adopt. In some cases, an intermediary, such as a doctor or clergy member, is used. In an independent adoption, the child is placed with adoptive parents without the assistance of an agency. As a result, the process is typically faster. On the other hand, the process may be more expensive, since government subsidies and support services that come with an agency adoption are not provided. Also, many states extensively regulate these adoptions and some states prohibit them outright. Regulation may consist of requiring a birth parent to undergo extensive counseling. In addition, many states allow birth parents to negate (undo) an adoption within a certain time frame; 
  • Open Adoptions. An open adoption is a type of independent adoption in which the birth mother may maintain some amount of limited contact with the child, even after the adoption. In an open adoption, parental rights are possessed by the adoptive parents; and 
  • Stepparent Adoptions. In a stepparent adoption, a remarried parent and their new spouse adopt a child from a prior relationship. This type of adoption requires the consent of the other birth parent. That parent may deny consent. If consent is denied, the stepparent must file a petition in family court ordering termination of the parental rights of the biological parent.

Common Types of Adoption Disputes

Typically, the adoption process goes smoothly and does not involve very many legal issues or disputes. This is partially due to the fact that the adoption process involves a thorough screening and background check process. However, some common legal disputes do arise throughout the adoption process.

Some of the most common examples of such disputes include:

  • Disputes over the rights of the child's biological parents. It is important to note that adoption generally severs all legal rights once the adoption is finalized, although some biological parents wish to maintain contact with the child;
  • Reversing an adoption decision, generally due to adoption fraud, the child having unexpected needs that the adoptive parent(s) cannot handle, or health issues on the part of the adoptive parent(s) that render them unable to care for the child;
  • The stability of the adopting parent(s) come into question, such as their mental, emotional, or financial stability; 
  • Issues between the state and the adopting parent(s); or
  • Disputes with the adoption agency responsible for handling the adoption process.

As previously mentioned, adoption fraud is a potential dispute that could lead to the adoption being reversed. Adoption fraud typically occurs when the adoption process includes any form of misrepresentation, deceit, or false representation. This can present in many forms and can be committed by any party involved in the adoption process, including:

  • The birth parents;
  • The adoption agency;
  • State social workers;
  • Those with previous legal custody; or
  • The adoptive parent(s).

Adoption fraud may sometimes be referred to as wrongful adoption, and is a serious violation that can have equally serious effects lasting for years, or even decades. Laws governing adoption hold all contributing people or parties liable for adoption fraud.

Such disputes often require the intervention of a social worker, or other state agents. Should a dispute arise, a legal hearing may be necessary in order to resolve the dispute and clarify any issues at hand.

What Else Could Complicate an Adoption?

Adoptions can involve unique situations that could complicate the adoption process; and, adoption does not always involve a child. Adult adoption may be required in cases involving an adult who is no longer capable of caring for themselves. These types of adoptions can involve their own issues, especially if the adult needing to be adopted is physically or mentally disabled. The adopting party may be required to provide proof that they are capable of providing the proper type of care for the adoptee, in addition to meeting all of the typical eligibility and capability requirements.

Most state laws are unclear regarding whether a same sex couple may adopt a child. Those few states that do ban adoption by same sex couples often face lawsuits challenging the bans as unconstitutional. Most laws banning adoption by same sex couples have been overturned. In the state of Utah, unmarried but cohabiting couples are prohibited from adopting a child together. However, Utah does permit single individuals to adopt. This ban has been challenged before, and will likely continue to be challenged until it is overturned.

Wrongful Adoption or Adoption Fraud

Adoption is a legal process through which the legal obligations and rights of a child with respect to its biological parents are terminated. In the process, new rights and obligations are established between the child and the child's new adoptive parents.

Adoption involves establishing a parent-child relationship between individuals who are not biologically related. As a result of the legal process of adoption, a child is given the rights, privileges, and duties of a child and heir by the family that adopts the child.

Adoption procedures in the United States are regulated by state statute. State adoption statutes prescribe how adoptions can be completed and what the consequences are. State statues also specify the rights and responsibilities of all parties involved i.e., the biological parents, the adoptive parents and the child.

A person must be qualified to adopt a child under the law of the state in which they live. State law also regulates who may be adopted. Almost all statutes require consent of the biological parents to adoption. Most state laws establish detailed requirements for both the form and procedure through which the biological parents may consent to an adoption.

Many U.S. citizens pursue adoption in foreign countries. Each country has its own adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. The costs of foreign adoption vary from nation to nation. Other ways to adopt are through adoption agencies and privately arranged adoptions.

Wrongful adoption refers to any type of adoption that involves misrepresentation, fraud, deceit during the adoption process. The people and entities who can be found liable for wrongful adoption may include birth mothers, previous parents, adoption agencies, social workers, and others.

Sometimes potential adoptive parents can be found liable for wrongful adoption or adoption fraud, but usually wrongful adoption cases are filed by the adoptive parents, and in some cases, the person who was adopted (the “adoptee”).

Wrongful adoption usually involves the failure to disclose negative information about the medical or relevant history of either the birth mother or child. For example, in one case, an adoption agency did not tell the adoptive parents that the mother had a history of hospitalizations for psychiatric illnesses. Wrongful adoption cases are serious and may often be filed whether the damages were caused intentionally or negligently. However, the people suing need to prove damages to have a valid claim.

Adoption fraud is a criminal act and involves obtaining money from adoptive parents under false pretenses; for example, a person or agency may take the money of adoptive parents on the promise of providing a child to adopt but then fail to produce a child.

Examples of Wrongful Adoption or Adoption Fraud

There are many kinds of wrongful adoption or adoption deception. Most cases of wrongful adoption involve a failure to provide significant information about the parties involved that would affect the physical or emotional health of the child. Adoption fraud usually involves the pretense of adoption in order to get money from adoptive parents or providing a child that is not legitimately available for adoption, e.g. a child who has been trafficked from a foreign country.

Some examples include:

  • Demanding the payment of a large amount of money up-front; in most states, this is illegal;
  • Misrepresenting the identity of the child or of any parent involved;
  • Negligent misrepresentation of medical history, emotional or developmental problems or significant background information about the child's birth family and history;
  • Failing to provide information about the child and the child's biological family. Agencies should provide adoptive parents with relevant medical and psychological information, including whether the biological mother used any prescription medication during her pregnancy.
  • Promising adoptive parents custody of a child, without any real intention of completing the adoption promise; usually involves collecting fees up front and then failing to provide a child;
  • Failing to obtain consent of the adoptee when it is required;
  • Attempting to complete an adoption without going through the necessary legal formalities.

If a person thinking about adoption is unsure of a particular adoption situation, the person may wish not to participate until they are sure of the information about the situation and the complete history of all parties involved.

What Should I Do to Avoid Wrongful Adoption or Adoption Fraud?

If a person works through an agency, adoption can cost from $8,000 to $40,000. If a person is adopting a child in a foreign country, they can add the cost of traveling to the agency fee. The cost of travel is not included in the amount charged by most agencies. In addition to the financial cost, there is the emotional investment people make in the hope of adopting. Sadly, the amounts of money involved can motivate the wrong kind of people to engage in fraud. It is important to do research before giving money to anyone for an adoption.

One step to take is to read fully and completely all documentation involved in any adoption. Adoption agencies in other countries often have been known to include disclaimers in their contracts so as to avoid liability for wrongful adoption. A disclaimer is a clause that absolves the agency and others of any liability for damage due to negative outcomes. These disclaimers have been upheld as valid in some United States courts. If a person finds disclaimers of liability in a contract, they should not sign and probably should go elsewhere for their adoption.

Other steps that people can take to avoid becoming the victims of fraud in adoption are as follows:

    • Get medical proof of the pregnancy: obtain medical documentation of the pregnancy from start to finish;
    • Work with an experienced adoption professional: this may be a person's best guarantee against fraud or misrepresentation; a person should work with an agency that has years in the field and a solid reputation that a person can verify through research; the agency should be licensed and bonded;
    • All payments to the birth mother should go through the agency: The costs of an adoption should not change during the process; if the birth mother starts asking for extra payments for whatever reason, this should raise a red flag; a person should contact their agency immediately;
  • Have all documentation reviewed by a lawyer: Adoptive parents want to have a lawyer review all of the relevant documentation; if there is no documentation and the adoption appears to be an effort to operate outside legal requirements, then clearly this is a situation in which a person does not want to be involved.

If a person thinks they have been the victim of adoption fraud, they may want to report the potential violation to their local police department, the FBI, state attorney general office, or the National Fraud Information Center.

Are There Any Legal Remedies for Wrongful Adoption or Adoption Fraud?

Cases involving wrongful adoption law are generally pursued in civil courts rather than through the criminal court process. In order to sue an agency and others for wrongful adoption, a person needs to be able to show some amount of measurable damages, such as costs of necessary medical care for the child. A person would sue for negligence on the grounds that an agency failed to uncover significant information that it should have found because the agency intentionally withheld significant negative information.

Remedies for wrongful adoption usually involve filing a civil suit for damages to compensate the adoptive parents for such losses as:

  • Loss of companionship between parent and child;
  • Accumulated medical expenses (in cases where medical history or records were withheld or falsified);
  • Emotional distress;
  • Lost wages;
  • Adoption process fees;
  • In other cases, other remedies may be necessary, such as reversing the adoption process, although this remedy would be awarded only in very rare circumstances.

As for the illegal adoption or outright adoption fraud, these are felony criminal offenses in the United States. They are crimes internationally as well. The consequences of illegal adoption can include a prison sentence and fines if the perpetrator is convicted of a felony offense.

What is the Process for Adopting a Foreign Child?

Adoption is a legal process where an individual assumes parental responsibilities over a child. The adoption process transfers parental rights and obligations from the existing legal or biological parents to the adoptive parents. The process of adoption requires court approval which occurs after a legal proceeding called an adoption hearing.

In most cases, the adoption process requires the adoptive parents to:

  • Select a child for adoption;
  • Be interviewed by social workers or other employees of various state agencies who handle adoption services;
  • Undergo background checks;
  • Fill out required forms, such as a petition for adoption; and
  • Pay the necessary state or filing fees.

In the United States, there are two general categories of adoption: domestic adoption and foreign adoption. Both of these adoption types involve the transfer for parental rights from a child's biological parents to a child's adoptive parents. Should the adoption process be completed, the child will be viewed legally as if it were the biological child of the adoptive parents.

Once parental rights are transferred, the biological parents no longer have legal rights to make decisions regarding the child. Those rights now lie completely with the adoptive parents. This also includes establishing a formal parent-child relationship in the eyes of the law which relates to other issues. These issues may include inheritance rights and/or child custody obligations.

The decision of the court regarding the adoption of the child will be based on the child's best interest standard. This standard is based on a number of factors including the child's background and the circumstances surrounding the lives of the adoptive parents.

Adoptions overseas, also known as foreign adoptions or intercountry adoptions, occur when a child is adopted from another country. These adoptions can be very complex because the child is being adopted and must complete the immigration process. This is an extra step beyond domestic adoptions, or adoptions that occur in the United States.

American adoptive parents have adopted children from over 50 countries. American parents may not adopt children from Western, Europe, Australia, or Canada. As of the early 2000s, most foreign children were adopted from China, Russia, Guatemala, South Korea, and Ukraine.

What Do I Need to Complete to Carry Out a Foreign Child Adoption?

A foreign child adoption can be a complex and multi-step process. It involves coordinating with several agencies, each of which have their own separate and distinct requirements that must be met.

In order to complete a foreign adoption, an adoptive parent will generally be required to follow guidelines set forth by:

  • U.S. Citizenship and Immigration Services (USCIS);
  • A designated agency in the country where the adoptive child resides; and
  • A designated agency in the adoptive parent's state of residence.

Adopting a foreign child usually takes between 1 and 4 years. The total time to complete the process will vary based on the child's birth country and the circumstances surrounding the adoption.

In most cases, in order to complete a U.S. immigration adoption, the adoptive parents must complete the following steps:

  • Filing advance paperwork with the USCIS attesting to their parental ability and stable home environment;
  • Deciding what country or countries they want to explore for adoption;
  • Locating an orphan child that they wish to adopt;
  • Adopting the child following the laws of the child's country;
  • Filing the appropriate petition to classify the child as their relative to bring the child legally to the United States for residence; and
  • Completing any background checks, paperwork, home studies or other requirements imposed by any of the agencies involved in the process.

The adoption of a child from a foreign country is legal in most cases in the United States. However, individual states are not required to recognize the foreign adoption. Therefore, adoptive parents may also wish to re-adopt the child in the state court where they reside and obtain a state birth certificate.

What Are the United States Rules and Procedures for Foreign Adoptions?

The adoptive parents must satisfy the requirements for adoption in the United States and the country where the child resides. Parents may obtain an immigrant visa for the adoptive child from the U.S. Citizenship and Immigration Services after certain requirements have been satisfied. These include:

  • Providing proof the adoptive parents are married; OR
  • If single, providing proof the adoptive parent is 25 years of age or older;
  • Filling out the required forms, such as the Orphan Petition, or Form I-600; and
  • Completing a home study;
  • Receiving a favorable home study report.

Form I-600 is used to prove that the adoptive child's parents are deceased, have disappeared, or that the remaining parent consents to the child's adoption and immigration to the United States.

How Does the Immigration Process Work after Adopting a Child from a Foreign Country?

After adopting a child from a foreign country, there are three different ways the adoptive parents can immigrate the child into the United States. The difficult level for the adoption varies and is dependent on how the adoption is categorized. The three categories are:

  • Hague;
  • Non-Hague, or orphan adoption; and
  • Immigrating other adopted children.

A Hague immigration is available if a child is from a country where they have a treaty with the United States for intercountry adoptions. The treaty is the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. This treaty applies to 98 countries, and the number continues to grow. Should this method be available, it is preferred for the immigration process.

A non-Hague, or orphan adoption is available when the child is from a country that is not party to the Hague treaty. The guidelines and filing procedures in these cases are different than those of Hague adoptions. The child will have to meet certain requirements and the adoptive parents will need to file an orphan petition.

Immigrating other adopted children occurs when the adoptive parents submit a family based petition for an alien relative. This is done using Form I-130. This form is used to establish a relationship between the individual immigrating and a lawful permanent resident of the United States.

There are specific requirements for each type of adoption and immigration, including and beyond paperwork. A Hague and an orphan adoption both require the completion of a home study.

A home study may include obtaining personal references about the adoptive parents. Additionally, visits are conducted at the home to ensure it is safe and can accommodate all family members, including the adopted child. The requirements for home studies vary by state. An immigration attorney can assist with ensuring the process is completed properly and no steps are missed.

One of the most common questions in these processes is how the adopted child can become a United States citizen following the adoption. In most cases, the United States will issue a permanent resident visa to the child after the petition is approved. The adopted child will not be placed on a waiting list for citizenship if:

  • At least one adoptive parent is a United States citizen;
  • The child is under 18 years of age; and
  • The adoption is finalized.

What is Adult Adoption?

When most individuals think of adoption, they imagine a scenario where a minor child is parentless and is adopted by a new family and is dependent upon them for their emotional and financial needs. Individuals are not likely to be concerned when an individual adopts a 5 year old child than when they are adopting a 35 year old adult.

Adoption, however, is not limited to minor children. The reasons an individual may adopt an adult are not that different from those reasons for adopting a minor child. 

When an individual becomes an adult as opposed to a minor is determined by the laws of the state in which they reside. In many states, a minor is an individual under the age of 18. However, in some states, an individual is not an adult until they reach the age of 19 or 21. 

While many states have adult adoption laws, some states strictly prohibit adult adoption. Even in states in which adult adoption is permitted, there will be strict requirements which must be met prior to beginning the adoption process.

If an individual is considering adopting an adult, they may wish to consult with an attorney in their state in order to determine what the procedures and requirements are. Regardless of any variations in state laws, an adoption requires a court approval before it can be finalized.

In many states, it is legal for an adult to adopt another adult so long as there is at least a 10 year age difference between the individuals and they are able to demonstrate why the adoption is in the best interest of both parties as well as the public good. In many cases, adult adoptions are step-parent adoptions that the family did not complete while the individual was a minor but they now want to ensure the individual has complete inheritance rights.

In some cases, an older adult that does not have children of their own may meet younger individuals whom they wish to treat as their children for inheritance purposes. In many states, there are protections in place for the oversight of adult adoptions where caregivers of an elderly individual are involved, in order to prevent elder financial abuse.

Why Adopt an Adult?

As noted above, there may be many reasons for adopting an adult. These reasons may also include:

  • Estate planning;
  • Real property taxes; and
  • Formalizing existing relationships.

Estate planning is one of the most common reasons for an individual to adopt an adult. This is because adoption makes property transfers easier under inheritance laws. 

The law grants certain rights to individuals in a parent-child relationship. Once an individual has been legally adopted, the law will allow the adopted child the same rights and privileges to inherit their parent's property as that of a biological child.

A parent-child relationship may also have additional benefits in relation to real estate and real property taxes. In some states, for example, property can be transferred between a parent and a child with minimal tax consequences due to their special relationship.

Adult adoption also allows individuals to formalize existing relationships. This may occur in cases where an individual has served as a foster parent or has grown particularly fond of an adult with whom they have developed a parent-child relationship. 

If an adult adoptee is incapacitate in some way and an individual has been taking care of them, they may wish to ensure their ability to continue doing so and to make important medical decisions for them by formally adopting them. In addition, individuals may have married later in life and wish to adopt an adult child of their new spouse.

In other cases, if a birth parent gave away their child when they were young, they may wish to renew their biological claim to their child once that child reaches adulthood. Formally adopting an adult child can make the parent-child relationship official in the eyes of law.

What is the Adult Adoption Process?

The procedures for adoption are determined by each individual state. However, an individual can expect to encounter some of the same requirements across the states whether they are seeking to adopt a minor child or an adult.

Typically, the individual will petition the appropriate state court in order to begin the adoption process. The adoption petition must include paperwork showing that the adult consents to being adopted.

In certain cases, spousal consent may also be required. There may be a hearing regarding the adoption. Either way, the court must issue a formal court order prior to the adoption becoming official.

Similar to the adoption of a minor child, once the adoption is approved, the adoptee will be issued a new birth certificate. The adoptee's relationship with their biological or custodial parents will be severed and the birth certificate will reflect the adoptive parents as the individual's parents.

How Much Does Adult Adoption Cost? 

Adult adoptions are not as common as infant or child adoptions. Generally, the cost of an adult adoption is around $800 on average. 

However, adoption lawyer fees may range from $100 to $1,500 in the United States. In some cases, a stepparent or kinship adoption may cost less than $100.

It is important to note that the individual may also be required to pay attorney's fees in addition to the cost of the actual adoption. Typical adoption attorneys charge an hourly fee which can range from $200 to $300 per hour. Some attorneys may also charge a flat fee for a simple, uncontested adoption with no special concerns or circumstances.

Can I be Prohibited from Adopting an Adult?

Yes, an individual may be prohibited from adopting an adult. One of the most obvious reasons an individual may be prohibited from adopting an adult is that the state specifically prohibits adult adoptions or the adult is older than the maximum age for adoptions in the state. In addition, the individuals may not meet the minimum age difference between adopting parent and adult adoptee.

In addition, even if a state permits adult adoptions, an individual may be prohibited from adopting an adult due to incest laws. In other words, if the individual and the adult adoptee are involved in a sexual relationship, the individual will not be permitted to adopt that adult as their child.

Lastly, if a court finds any evidence of fraud, the adoption petition will be rejected. For example, in some cases, wealthy elderly individuals are targeted by individuals who wish to inherit their assets and property. In these cases, the court will want to ensure the reasons for the adoption are lawful. 

How Can a Lawyer Help Me?

It is essential to have the assistance of an adoption attorney if you are considering adopting or if you have already begun the process. The requirements vary by state and your attorney is best equipped to advise you regarding the laws in your state. 

Your lawyer will assist you in presenting your adoption case to the court as well as represent you if you are required to appear in court. Your lawyer will ensure your adoption case meets the criteria of your state and is processed as efficiently and as quickly as possible. 

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.