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A Primer on Adoption Law Douglas E University of Missouri School of Law Scholarship Repository Faculty Publications Faculty Scholarship Summer 2001 A Primer on Adoption Law Douglas E. Abrams University of Missouri School of Law, [email protected] Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the Law Commons Recommended Citation Douglas E. Abrams, A Primer on Adoption Law, 52 JUVENILE AND FAMILY COURT JOURNAL 23 (2001). Available at: https://scholarship.law.missouri.edu/facpubs/806 This Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Content downloaded/printed from HeinOnline Tue Oct 8 17:34:31 2019 Citations: Bluebook 20th ed. Douglas E. Abrams; Sarah H. Ramsey, A Primer on Adoption Law, 52 Juv. & Fam. Ct. J. 23 (2001). ALWD 6th ed. Douglas E. Abrams; Sarah H. Ramsey, A Primer on Adoption Law, 52 Juv. & Fam. Ct. J. 23 (2001). APA 6th ed. Abrams, D. E.; Ramsey, S. H. (2001). primer on adoption law. Juvenile and Family Court Journal, 52(3), 23-44. Chicago 7th ed. Douglas E. Abrams; Sarah H. Ramsey, "A Primer on Adoption Law," Juvenile and Family Court Journal 52, no. 3 (Summer 2001): 23-44 McGill Guide 9th ed. Douglas E Abrams & Sarah H Ramsey, "A Primer on Adoption Law" (2001) 52:3 Juvenile & Family Court J 23. MLA 8th ed. Abrams, Douglas E., and Sarah H. Ramsey. "A Primer on Adoption Law." Juvenile and Family Court Journal, vol. 52, no. 3, Summer 2001, p. 23-44. HeinOnline. OSCOLA 4th ed. Douglas E Abrams and Sarah H Ramsey, 'A Primer on Adoption Law' (2001) 52 Juv & Fam Ct J 23 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device A Prin-EI --11 &I Itn Law BY DOUGLAS I SEY, J.D., LL.M. This ortide f,,y oitap t 1 o,- byjudges, lawyersodLit ~, r& Iivas i QUhorsAo a n Odren and the Ln,w~oki f d q dzen law schools, nuy ,ht i~ io i intompommote~f ls, d both statutory and (use ~I4nniji lual differences while enacting vari- fr these model acts wholly or in 4Istorical Overview and th. resent Landscape in statutory language from state to state Adoption was unknown at common iW alk4 did not may affect the outcome in adoption cases presenting become part of statutory law in the Unitecl ,tates 01161 apparently sinilar facts. Because of similarities among the mid to late nineteenth century. Th first moderti adoption acts, however, lawyers handling an adoption adoption act was enacted in Massachusetts in 1851, should remain alert to other jurisdictions' statutory and oddly enough with little fanfare or public notice. Not decisional law, which may provide persuasive authority. only did the act depart from English law, which had Where parties to an adoption proceeding reside in dif- long prohibited permanent transfer of parental rights ferent states, conflict of laws rules may also require and obligations to third persons; the act also specified application of another jurisdiction's adoption law. that the child was the prime beneficiary of the adop- Between 2% and 4% of American families have an tion process. When considering whether to approve an Courts grant at least 140,000 to 160,000 adoption petition, the court would determine whether adopted child. annually (that is, considerably more than a approval would serve the child's interests. adoptions million each decade), though estimates remain inexact Today all states have statutes providing for adop- because the Census Bureau, other federal agencies, and tion of children. The various acts are marked by both most states do not systematically track the total similarities and significant differences because efforts at number. Accurate records are maintained only of nationwide uniformity have largely failed. Only five international adoptees who enter the United States states have enacted the 1969 Revised Uniform Adoption with the cooperation of immigration authorities, and of Act, and only one state (Vermont) has enacted the "special needs" children who receive federal and Uniform Adoption Act (1994). Other states have Douglas E. Abrams holds a B.A. summa cum laude from Wesleyan University and a J.D. from Columbia University School of Law. He is an Associate procedure. He serves on the Missouri Bar Professor of Law at the University of Missouri-Columbia, where he teaches children and the law, family law and civil in 1994, Last year, he Commission on Children and the Law, and he received the Meritorious Service to the Children of America Award from the NCJFCJ justice. received the Spurgeon Smithson Award, presented by the Missouri Bar Foundation for outstanding service to the cause of Hill, and her LL.M. from the Sarah H. Ramsey received her B.A. from Duke University, her J.D. from the University of North Carolina at Chapel and Social Policy Center, and is a University of Michigan. She is a Professor of Law at Syracuse University College of Law, directs the law school's Family Law member of the New York State Bar Association's Children and the Law Committee. West Group will publish in the autumn of Note: This article is adapted from Chapter 6 of the authors' forthcoming Children and the Law in a Nutshell, which 2001. Copyright West Group, reprinted with permission. Further material on adoption low appears in the authors' casebook, Children and the Low - Doctrine, Policy and Practice (West Group 2000). Summer 2001 0 Juvi fite- Mfny iO l A Primer on Adoption Law state assistance. the adoptive parents. Where the adoptive parent is a In 1997, the President of the American Bar stepparent or partner, the adoptive parent replaces the Association reported that "[a] cross our nation, in every birth parent whose rights have been terminated state, hundreds of thousands of children spend each day but the child's relationship with the other birth waiting in foster care, housed with temporary caretakers parent continues. as wards of the state. These are not unwanted children. Adoptive parents thus assume the constitutional Though their biological parents may not be willing or rights of parenthood, including the due process right to able to care for the children, often others would gladly direct the child's upbringing. The adoptive parents and take legal custody through adoption if they were able to the adoptee also secure new rights and obligations complete the process." The President reported one com- under a variety of federal and state laws, including tax mon obstacle to adoption - "a shortage of qualified laws, workers' compensation laws, social security and lawyers who can help families on a pro bono or other entitlement laws, welfare laws, inheritance laws, States, reduced-fee basis" - and urged the organized bar to and family leave laws. See, e.g., Buchea v. United recruit and train lawyers for service. N. Lee Cooper, Free 154 E3d 1114, 1116 (9th Cir. 1998) (girl could not sue the Children: A Cumbersome Adoption Process is for her biological father's wrongful death because she Keeping Families Apart, 83 A.B.A.J. 8 (May 1997). had previously been adopted by her maternal grandpar- ents and thus was no longer the birth father's "child"). Strict and Liberal Construction Incest statutes are a major exception to the princi- Reciting the historical pedigree of American adop- ple that a valid adoption extinguishes the child's rela- tion law, many decisions hold that adoption statutes are tionship with the biological parents. Under statutes pro- in derogation of the common law and thus are strictly hibiting marriage or sexual relations between parent construed. On the other hand, many adoption statutes and child, brothers and sisters, and other close relatives mandate liberal construction to further the best inter- of the whole or half blood, proof that one of the parties ests of the child. had been validly adopted is not a defense to an incest Even where liberal construction controls interpre- prosecution. See, e.g., State v. Sharon H., 429 A.2d 1321 tation of substantive adoption provisions, courts may (Del.Super.Ct.1981). strictly construe procedural provisions, which are designed to protect the child by enabling the court to WHO MAY ADOPT A CHILD? decide based on the most complete information Statutory Standing and the available. Much adoption procedure is set out in a state's "Best Interests of the Child" Test a adoption act itself. Because adoption is a civil A child is adopted only when the court enters proceeding, the state's general civil procedure code final decree approving the adoption. The court enters that adoption by a and general civil court rules may govern procedural the decree only when it determines or petitioners with standing to adopt would matters not explicitly addressed in the adoption code, petitioner including matters relating to service of process, plead- be in the best interests of the child. acts confer standing ings, discovery, conduct of the proceeding, and post- As a general matter, adoption on married couples petitioning jointly, stepparents wish- proceeding matters. ing to adopt their stepchildren, and frequently on single The Effect of Adoption persons. Courts determine the best interests of the child case, including Adoption is "the legal equivalent of biological par- by examining the circumstances of the the conditions of the prospective adoptive parents and enthood." Smith v.
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