Can somebody help me understand open adoption agreements?

Question

I see a lot of people AP's and Parents who have surrendered going through a once open, now closed adoption. Since I have never been in an open adoption, what legality do the open adoption contracts or agreements actually have? If they aren't enforceable by a court of law, what is the point of them?

Are parents ( by blood relation and adoption ) being deceived about the legality of these contracts? or are they aware that they are not enforceable? If they have been deceived, would the agency then be liable for the closed adoption? and could an agency be held accountalbe for damages if one were to close?

Thanks

Answer 1

Legally enforceable no.  There is nothing signed stating any type of openess of an adoption that i'm aware of.  

As a person i value my word and the word of others.  So i have upheld the open agreement we decided on and plan to continue to do so.  

I do so not only because i said i would, but because i believe it to be what's best for my child.  I don't see any harm ever coming to her from knowing her other family members only a benefit.  That is my particular situation.

When we first started with adoption i did believe even as an adoptive parent that if you agreed to an open adoption, then it would have to be enforceable in some mannor.  So i was surprised to find out it was nothing more than promises made by strangers.

If i was lead to believe this, then yes i think mother's who wish to place are being mislead about an open adoption plan.  I now see it as a way to entice mother's to go ahead with their adoption plans, thinking they will always have contact with their child.  

It absolutely should be enforceable like a custody agreement type of thing.  But I can't see how it could come back on the agency.  Since nothing is signed or legalized.  If it were then yes the agency and adoptive parents would have to legally uphold their end of whatever agreement was signed.  

I do believe that if an agency is going to tell mother's that they can choose an open plan then they  need to have the means to stick behind it.

Now with my agency my daughter's other mother was informed that even though we agreed to an open adoption that once she relinquished her rights that it was up to us to uphold that agreement.  So knowing what i know now, she just got lucky with us doing this.  And I also realize now not many agencies would have told her what she was told.

Answer 2

I am an adoptive parent with an open adoption.  Everyone involved knew before anything was finalized that the agreement was not legally enforceable.  That being said, the birthparents both have our full names, address and all of our contact information.  We have the same information for them.  I would imagine that every situation is different, reading some of the questions and answers under adoption, we are thankful every single day for the wonderful relationship we have with our boys and their birth parents.

Answer 3

While it was discussed what we would like in our OA, I was told that it is not legally binding.  I signed a copy and they signed a copy.  What we will do for Supergirl, our promises to her while she grows up.

I was given the option to have the agreement filed with her paperwork but even if they did something, such as close the adoption, I would have no legal leg to stand on.

Answer 4

Open adoption agreements are not enforceable (in most cases) and you bet your bippy that parents are deceived.  Those who actually are honest people will maintain the open adoption agreement, but many folks cut and run as soon as the adoption is final.

Answer 5

Open adoption agreements are nothing more than a trust agreement between the bmom/or dad and the APs and are not legally enforceable. We signed an open adoption contract which indicated the level of openness and all parties were completely aware that it was not legally binding. We knew it and my daughter's bmom knew it. But for us it was OK because we were sincere in our desire to honor the open agreement (which in our case is wide open) and I know now that she just felt it was right.

I have the same question as you...what's the point of them if they are not honored? Are they a lure?... I've seen a lot of testimony on this site from rejected bmoms that would indicate that. And it wasn't until I came here that I fully understood that this really happens.

I've been naive to think that all APs who consent to open adoption would honor it. I can't think of anything more cruel to do to a fellow human being.  For me, my heart could not do that to someone.

That being said, I think open adoption can be a wonderful thing but something does have to be done to regulate/police it. I'm not sure what the answer is. Fine the APs? Return the child? What if the bmom still doesn't want to parent? I'm not sure what the answer is. But I'm still gonna think on it.

Answer 6

In Canada (specifically Alberta) open adoptions are a legal procedure which have the same rights as closed adoptions.  "Private" adoptions are where your rights are on the line as they aren't always legally enforceable.

Answer 7

No.. unfortunately they are not legally enforceable by law.. that's one thing (though certainly not the only one) I think should change.. I think the birthmother should be able to chose open vs closed adoption, and if the aparents have the choice of whether to "deal with" that birth mother or not.. if they chose to go into that open adoption, then I think it should be enforceable..

That's one thing that needs to change..

as it is, it is a "trust agreement" between the two parties, but from what I understand, the trust is often broken..

Answer 8

While in a court of law, our agreement is not legally enforceable, it is considered to be "binding" through our agency.  If we do not provide at least letters and photos on a yearly basis, the agency is allowed to give our name & address directly to the birth parents to contact us directly.  Our agreement was amended though to indicate that since we were having a completely open (i.e. visits, etc.) relationship, we did not have to go through the agency with letters or pictures since we would be doing it directly with the bio family.  

I believe that open adoptions should require some type of mediation if it is to be closed by either set of parents.  In some cases, I can understand an adoption being closed after it once was opened.  For example, where it is affecting the child adversely or a bio parent pops in and out of their life on a whim.  But I think the decision should be made by an advocate for the child or a neutral 3rd party.  

In our case, the bio parents chose to close the adoption - which I can respect to some degree.  However, our son is lucky to have a very open relationship with his bio grandparents so I hope that they will be able to help with many of his questions as he gets older.  It was a sigh of relief somewhat when the bio parents closed the adoption - simply because of the neglect my son sufferred with them, but it also saddens me that my son will not have any memories of them.

Answer 9

I think the birth family HOPES that the adoptive family will remain in the open doption, but in the end they don't. It's just one more time the bmom has to grieve as we do on every birthday, no, everyday we are away from our babies.

Answer 10

Legally, they are not enforcable in most states unless written properly.  Techincally, the parents could sue civilly (SP) for violation of the contract and show emotional damages.

But usually the rights of the legal parent to make decisions for their minor child outweigh them.

The point of them is to give some assurance to the adoptive parents, and hopefully some people will consider the fact that the other party gave them their child and they signed their name on a contract.

My agency has people sign discipline policies, especially no physical discipline, no discipline by verbal insults, saying mean things about the birth parents etc...in foster care we can use it, in adoption...won't hold water.

I would hope an agency would be held accountable, but again, it goes to the rights of the legal parents to raise the minor child and that goes over all other things.  (I'm not saying that is right, I'm saying what the court looks at).  You'd have to show proof that the agency knowing facilitated the contract knowing the party would not see it through.

Answer 11

We were sat in a room with our case worker and the prospective first mother.  The (pfm) was asked what she wanted in the open adoption.  She didn't really know.  The caseworker suggested starting with letters and photos.  The (PFM) agreed.  We told her we would be willing to give her what ever she needed.  PFM started to cry.  I told her we meant it whatever she needed, anything.  The social worker wrote that on a carbon sheet of paper.  We all signed and received our copies.

Later the social worker told us that this document was not legally enforceable if we changed our minds.  I was dumbfounded.  I gave her my word.  I plan on sticking to it.  What ever she needs.  The social worker said we were good people.  I kinda thought that was weird at the time.  Why would i lie to someones face.  Yes, i'm naive.  Its part of my charm.  

Years later when our DD's first mother ended contact, i was confused.  I wish i hadn't said what ever you need.  Cause now i was like is what she needs is no contact? should i respect that?  I don't know i feel like i'm walking on eggshells sometimes with her.  So I went with my gut telling me that every mother wants to know how her child is doing.  I'm glad i did.  Now dd and her first mom are close and i can tell they are both happier.  Hopefully, they will come up here in July and we will go down there in October.

Now looking back at that comment telling us that we could change our minds later, yes the agency completely deceived the prospective first mother.  They should be held accountable and i hope they are liable.

On a side note,  The form was just a few questions about what our goals were for our open adoption.  It didn't look very professional.  I hope that helps.  I'll do some digging tomorrow and see if we still have our copy.

ETA:  Sorry, I couldn't find the form.

Answer 12

I was recently watching a documentary wher they were speaking to a paralegal at an adoption attorney that said that, in some cases, there can be agreements that are signed by both parties.  As they are drawn up by attorneys and signed by both parties, they are legally enforceable.

What he said, though, is that he feels that is a bad way to start out.  Requiring these agreements seems to imply mistrust.  The only time they are used is in the event that the birthmom is adamant about getting timely messages, and wants assurances that this will happen.

He said that there was only one case he was aware of one of these agreements being used, and it has never been needed.  The adoptive parents had been timely in their communication for over four years (at the time the documentary was filmed).  I wish I could remember what channel it was on (I think it was PBS.  The subject was not adoption, but rather legal aspects of parenting).