Lynn McNeese Swank
Attorney at law
157 Burke St., Suite 111
Stockbridge, GA., 30281
Phone: 678-833-2874 Fax: 678-833-2870
Email: lswank@swanklaw.com
www.swanklaw.com
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Adoption
This article is not intended to replace the need to consult
with a competent professional. Do not rely solely on the information
contained herein when making a specific legal decision as there are
generalizations in this material which might be incomplete or misleading when
applied to a particular fact situation. |
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WHAT IS ADOPTION? Although that question may seem very
simple, there is often confusion. Adoption is the legal declaration that one
person is from that time forward the legal ‘child’ and heir of the older one
who has been declared the parent. An adult may be adopted by another adult if
there is ten years separation in their ages and they wish to do so. When
adoption has occurred, the person adopted becomes a legal
‘stranger’ to his or her former parent. Most adoptions involve a child who
has not reached the age of majority. That age is 18 years in Georgia. The
basic forms of adoption in this state are: 1. Private or
independent adoption. Those terms refer to the same process and are
used interchangeably. In this situation a parent or guardian releases their
parental rights to someone else who is not closely related by blood or
marriage. The adoptive parent or parents are selected by the child’s birth or
legal parent and there is no involvement by the State until the Adoptive
Parent gives notice to the State that relinquishment has occurred [when
required] or asks a Court to approve
the status by final adoption. Essentially the prospective Adoptive Parents
have the task of searching out opportunities to connect with possible birth
parents. In Georgia adoptive parents cannot pay the birth or legal parent to
relinquish rights but may pay medical expenses directly related to the
pregnancy and birth. There is typically no foster care interval in private
adoptions in this State. If the case involves a newborn and the Adoptive
Parents are willing to undertake the risk that the Birth Mother might revoke
within the ten days after she has signed her relinquishment of rights (and
that the Biological Father will not assert claims), then the baby will
typically leave the hospital with the Adoptive Parents. A private adoption
may be ‘open’ or identified, ‘closed’ where the birth mother does not know
identifying details about the adoptive parents, or some degree in between
those extremes. 2. Placement
by a Licensed Child Placing Agency. The Georgia Department of
Human Resources licenses and regulates agencies, which provide foster care,
adoptive placements and assistance to birth parents. Because these
regulations are specific and closely monitored, Agencies are allowed to
perform acts and make payments which are prohibited to attorneys and adoptive
couples. An agency typically accepts an application from prospective adoptive
parents, performs preliminary training and conducts a home study of the
couple to determine their qualifications to adopt. The agency standards may
be much more rigorous than the laws of Georgia require. For example, the
agency may require that the Adoptive couple not have exceeded some maximum
age, that they be active in a religious organization or that they meet
certain health standards. The Agency locates the prospective birth mother who
is often allowed to select the adoptive couple from files and information
provided by the couple for her use. The adoption may be ‘open’ or closed.
Some agencies encourage openness, even to the degree that the adoptive
parents are welcomed into the labor and delivery rooms. The agency may
provide housing and other personal assistance to the birth mother in addition
to her medical expenses. Often the child must be placed in temporary foster
care after birth while the parental rights of the Birth Mother are completely
extinguished and those claims which any biological father might make are
resolved. 3. Placement by the State of
Georgia, Department of Human Resources, Division of Family and Children
Services: Adoptions through
the State Agency are most often those where a child has come into protective
custody due to neglect, abandonment or misconduct of a parent or guardian.
Often the child has been in the foster care system during a period of time
while the parent has been given an opportunity to correct the problem. There
is a growing trend in this State to give preference to the Foster care family
with whom the child has lived when adoption becomes possible. This provides
stability for the child. Georgia law also gives preference to blood relatives
if it is in the best interests of the child. These are the least costly
adoptions in an economic sense but the child often has medical or emotional
issues which will require tremendous parenting patience and skill. 4. Relative
or step-parent adoptions: As will be obvious from the title, these
are adoptions where a relative by blood or marriage is undertaking legal
parenthood over a child who had some other prior status to them. For a
relative adoption there is generally an agreement between the birth parent
and the relative as to the best means to raise the child. In the case of a
step-parent adoption, often the step-parent of a child takes the legal place
of a father or mother who has drifted out of the child’s life and does not
contribute to the child’s support or well being. Step-parent adoptions will
not occur when the child’s legal father or mother objects and is taking an
active role in the child’s life unless there is some extraordinary reason why
that parent should not be allowed interaction with the child [such as a crime
committed on the child by the parent]. 5. Adult Adoptions: As
noted above, this is a situation where one adult adopts another younger
adult. Often for inheritance or naming purposes, it still establishes the
parent-child relationship. Often this procedure is useful where there is a
reason why the adoption cannot be done at a younger age – for example, a
step-parent who wishes to adopt but the legal father objects. When the child
has reached age 18, the step-parent adoption can be done without the
involvement of the objecting father because only the consent of the young
adult is required at that stage. 6.
International Adoptions, domestication decrees: Whether directly or
through an Agency, children may be found in certain foreign countries which
have treaty status with the United States where adoptive placements can be
made with Georgia couples. The adoption may be finalized in that foreign
country, in which case an action termed ‘domestication’ may occur in Georgia
which confirms the United States recognition of the decree of the foreign
court. In other cases, the other country merely gives ‘guardianship’ or
‘custody’ to the Georgia couple and the adoption must be finalized in a
Georgia court. Placements crossing international
borders may be governed by a series of
treaties cumulatively known as “the
Hague Convention on International Adoption of Children.” These “Hague” adoptive rules have been
ratified by some countries and not by others. If you are considering international
adoption, then care should be taken to
work with qualified professionals and agencies who are educated in the
current rules of international placements regarding those specific countries. Which place
controls the law in an adoption? Unfortunately the answer is not
simple in all situations. The best general guidance is that the State where
the adoptive petition is to be filed is the place where the laws must all be
satisfactorily met. If an action is not legal under that state’s laws when
the Court action is heard, then the entire process may be jeopardized
regardless of its legality in another state. For example, in Georgia,
although licensed child placing agencies may do so, adoptive parents are not
permitted to pay to the Birth Parents (or to others on their behalf) any sums
except for medical expenses directly related to the pregnancy and birth of
the adopted child. To pay any other expense or give the birth parents money
directly for a non-medical reason will not only cause their surrender of
parental rights to be potentially invalid, it is also a criminal act [a
felony, punishable by one to ten years in prison and a possible $10,000 fine,
per violation. Paying a birth mother’s rent for four months could be
viewed as four separate violations.] Official Code of Georgia,
"O.C.G.A." §19-8-24(a). Advertising is another example
where different states have different rules. In Georgia a licensed
child-placing agency may do acts, such as paying a birth mother’s living
expenses, which are illegal for a person or an attorney to do. In Georgia a
licensed child-placing agency may advertise. A person cannot do so,
regardless of whether the advertisement occurs in a Georgia publication or
that of another state. A couple who is looking to adopt can write letters
[frequently called ‘resume’ letters even though they are not intended to be
biographical summaries]. Those letters and personal communications can be
circulated by the hopeful parents, but that same couple cannot legally place
a notice in a periodical or other mass broadcast resource without violating
O.C.G.A. § 19-8-24. If the adoptive placement is made as a result of an
advertisement but the adoption can be filed in another state which allows
public solicitations, then no harm may have been done. However, if the
hopeful parents intend to bring the child back into Georgia and file their
petition here, they are required to disclose to the Court the circumstances
by which they located the placement and would be in the position of admitting
that they have violated the law. The advertising/inducement statute is quoted here: 19-8-24
Unlawful advertisements or inducements - penalties.
(a) It shall be unlawful for any person, organization,
corporation, hospital, or association of any kind whatsoever which has not
been established as a child-placing agency by the department to:
(1) Advertise, whether in a periodical, by television, by
radio, or by any other public medium or by any private means, including
letters, circulars, handbills, and oral statements, that the person,
organization, corporation, hospital, or association will adopt children or
will arrange for or cause children to be adopted or placed for adoption; or
(2) Directly or indirectly hold out inducements to parents to
part with their children.
As used in this subsection, "inducements" shall
include any financial assistance, either direct or indirect, from whatever
source, except payment or reimbursement of the medical expenses directly
related to the mother's pregnancy and hospitalization for the birth of the
child and medical care for the child.
(b) It shall be unlawful for any person to sell, offer to sell,
or conspire with another to sell or offer to sell a child for money or
anything of value, except as otherwise provided in this chapter.
(c) Any person who violates subsection (a) or (b) of this Code
section shall be guilty of a felony and, upon conviction thereof, shall be
punished by a fine not to exceed $10,000.00 or imprisonment for not more than
ten years, or both, in the discretion of the court.
(d)(1) Paragraph (1) of subsection (a) of this Code section 19-8-24
Unlawful advertisements or inducements - penalties.
(a) It shall be unlawful for any person, organization,
corporation, hospital, or association of any kind whatsoever which has not
been established as a child-placing agency by the department to:
(1) Advertise, whether in a periodical, by television, by
radio, or by any other public medium or by any private means, including
letters, circulars, handbills, and oral statements, that the person,
organization, corporation, hospital, or association will adopt children or
will arrange for or cause children to be adopted or placed for adoption; or
(2) Directly or indirectly hold out inducements to parents to
part with their children.
As used in this subsection, "inducements" shall
include any financial assistance, either direct or indirect, from whatever
source, except payment or reimbursement of the medical expenses directly
related to the mother's pregnancy and hospitalization for the birth of the
child and medical care for the child.
(b) It shall be unlawful for any person to sell, offer to sell,
or conspire with another to sell or offer to sell a child for money or
anything of value, except as otherwise provided in this chapter.
(c) Any person who violates subsection (a) or (b) of this Code
section shall be guilty of a felony and, upon conviction thereof, shall be
punished by a fine not to exceed $10,000.00 or imprisonment for not more than
ten years, or both, in the discretion of the court. (d)(1) Paragraph (1) of
subsection (a) of this Code section shall not apply to communication
by private means, including only written letters or oral statements, by an
individual seeking to:
(A) Adopt a child or children; or
(B) Place that individual's child or children for adoption,
whether the communication occurs before or after the birth of
such child or children.
(2) Paragraph (1) of subsection (a) of this Code section shall
not apply to any communication described in paragraph (1) of this subsection
which contains any attorney's name, address, telephone number, or any
combination of such information and which requests any attorney named in such
communication to be contacted to facilitate the carrying out of the purpose,
as described in subparagraph (A) or (B) of paragraph (1) of this subsection,
of the individual making such personal communication. Under Georgia law
can you pay to have someone else search to locate a child for you to adopt? It is routine in
some states for attorneys or other persons who are not licensed agencies to
prepare and run advertisements and then to pre-qualify or "match"
prospective couples to birth parents. Fees, often substantial, are charged
for these services. Reading the statute quoted above, it does not appear that
anyone who is planning to adopt in Georgia can use such an intermediary (who
is not a licensed child placing agency). If the adoption can be finalized in
another state where it is legal to use an intermediary, then the Georgia
statute may not apply. Does Georgia participate in the Interstate Compact for Placement
of Children? Yes, emphatically, yes. To bring a child into the state or to
remove a child from Georgia for purposes of adoption (unless you are the
parent or a specified close relative of the child), it is necessary that
compliance occur with the rules of the Interstate Compact Offices in both the
Sending and Receiving states. Can compliance with the Interstate Compact occur before the
child is born? No, the biological mother or legal parents must relinquish
rights before the Interstate Compact Administrators will typically act,
however, for convenience, many applications are completed prior to the birth
with most details satisfactorily in place so that the process can be
expedited. Is there a specific method and time
period for relinquishment of parental rights in Georgia? The answer has different results depending on whether the parent
is the Birth Mother or biological father.
A Mother cannot surrender parental rights prior to the time that a
child has been born. After the birth
has occurred, or at any time when a
child is older, a Birth Mother can
sign the forms required by statute in Georgia [O.C.G.A § 19-8-26]. The signing of these
documents can occur in a hospital or private setting and it is not necessary
that either the birth mother or possible father go before a Judge in order to
relinquish their parental rights or claims unless the matter becomes contested in some
regard. After the surrender is signed, a parent has ten days in which the
decision may be revoked. Pre-birth relinquishment is permitted under Georgia law
where a biological father has been named by the birth mother in a written
affidavit and he wishes to release all claims. There is a special document and procedure
to be followed under this circumstance and he has a limited period from the
time of signing within which he could change his decision. If a man believes that he is the father of a child and wishes to
preserve paternity claims even though he is not married to the birth mother,
is there a means in Georgia by which that can be done? Yes.
There are several methods by which a man can protect his claims
to be a father of a child in Georgia.
One of those is registration on the Putative Father Registry which is
maintained by the Georgia Department
of Human Resources, O.C.G.A. § 19-11-9. A man can submit his name, that of
the birth mother and information as to the time period in which he believes
that a child might be born; and, if the child is born in Georgia, the listing
will prevent any legal action with respect to the child unless the man is
given notice. This Registry can be used by men who admit paternity and those
who wish to have the opportunity to determine if they are in fact the
biological or legal father of a child. The address for the Putative Father Registry is: Putative
Father Registry, Vital Records
2600 Skyland Drive, NE., Atlanta, Georgia 30319-3640. Telephone 404-679-4780. The website for information is at
http://health.state.ga.us/programs/vitalrecords/fatherreg.asp Are there rules in the Georgia law about ‘open’ or ‘closed’
adoptions? No, Georgia law permits an adoption to occur in open, closed and
hybrid in-between forms. Frequently with newborn adoptions (either Agency
placed or privately arranged) the parties exchange information and details
but not full names or identifying material. Many adoptions involve
post-birth, post-adoption communication between the birth parents and the
adoptive family. The details should be carefully discussed prior, during, and
after so that there is no misunderstanding as to the commitments being made
by all persons. Can a Birth Parent or adopted person have access to information
at a later date which will help them find their biological relative? Can a Birth Parent
or adopted person have access to information at a later date which will help
them find their biological relative? Georgia has a statute which provides for
the "Reunion Registry." When an adopted person reaches the age of
21 years, that person, his or her parents, or biological siblings, can ask
the State to use its resources and the adoptive records to locate the other
parties. If found, the one who was sought out can say "no," but
will be asked to provide updated medical information. If the target says
"yes," then they will be give information so that they can directly
communicate with each other. The address for the Reunion Registry is: Georgia Adoption Reunion Registry Is Surrogacy legal
in Georgia? As with many other states, the answer is that Surrogacy is not prohibited
in Georgia but it is also not specifically authorized. Changes by legislation in 2009 have eased
the complexity of obtaining legal status or children born through gestational
surrogacy arrangements but there are intricate procedures to be
followed. The rules for adoptions may
have to be followed if the situation is not a complete gestational
surrogacy, such as where the birthing female is the biological parent of the child. If the child is not her biological
offspring, then the position is often taken that the surrogate has no
parental rights to relinquish, that there is no adoption, and therefore the
adoptive rules do not apply. Caution should be exercised as it is very
possible that a Court will not enforce a surrogacy contract as written if a
dispute were to arise and the birthing female is not willing to cooperate
after the child has been born. Searching out birth
parents: Briefly stated,
some birth parents wish to be found and others make their adoption plan with
the anticipation that their identities would remain forever confidential. Any
efforts of biological family to seek out adopted children or of adopted persons
to seek their birth family should be undertaken with discretion and in a
manner which provides options to the other side to permit full disclosure or
provide a lesser level of information. Reunion Registries are available in
many states to provide this service. A more expansive discussion appears in
the article on this site "Post Adoption - Finding the Birth
Family." Several of the hyperlinks available on the "links
page" give examples of Reunion Registries and more extensive information regarding registration or search
requests. Also, there are experienced services staffed with trained persons,
available to assist with discreet, non-defamatory search and communications. Careful thought should be given at all
stages of a reunion search because there are often consequences to opening
doors which were intentionally kept closed. Other Reunion
Sources: If the state reunion registry is not cooperative or available
(for example if you are too young to qualify or the birth parent is
deceased, then you may wish to register with other
(non-government) projects. Some of these are: the International Soundex Reunion
Registry. This is a non-profit service. Send a s.a.s.e to: ISRR, P.O.
Box 2312, Carson City, Nevada 89702. Indian Child Welfare Act: Due to the special cultural
and historical relationships of Native Americans to all immigrants in what is
now the United States, Congress has enacted protections and restrictions
regarding adoption and foster care of these children. Native Americans are
those persons who are members, or in certain cases those eligible for
membership, in recognized Indian nations, as well as Eskimos and certain
other indigenous populations. Where the person to be adopted is a member of
one of these groups, then very specific procedures must be followed in order
for an adoption or foster care placement to be valid. This Federal law
supersedes all state laws on adoption. The statute is also known as "ICWA." Many states have their own “ICWA” laws, some of which are much more restrictive
than the Federal rules. Costs of adoption: Adoption is
the culmination of a series of decisions which inevitably change the lives of
the persons involved. There are
significant issues far beyond the economic cost, such as the emotional issues of commitment -- which are
far more important in the long run. However, the dollar cost of
adoption is certainly important. Costs vary with each and every
adoption, however, they can be roughly summarized in categories: Independent adoption – Includes whatever medical costs
must be paid on behalf of a birth mother and baby in connection with a
newborn which are not paid from another source. Consider the costs which
would be incurred if a baby were being born biologically to the adoptive
parent in determining the ‘reasonableness.’ Other medical costs may be
involved for the child’s benefit in connection with the adoption of an older
child. In addition to these medical
costs, there will be legal fees for
the services of an attorney to file the adoption. A home study by a designee of the Court
will be needed (which may or may not be performed by a licensed child placing
agency). The criminal histories and
medical status of the petitioners will be investigated, with costs incurred for examination of the
NCIC database, and medical
examinations (and tests in some cases).
Certification of documents are required. And the parties must produce certified
copies of their own birth certificates and background materials. Agency adoption - Agency fees will vary based on
the services being provided by the agency. For domestic newborn
adoptions a fee range of $15,000 to $45,000 is not uncommon. The agency
would be responsible for payment of the birth mother’s medical
expenses, living expenses and other reasonable services to her. International adoption - as with agency
placements, an international adoption can have a range of $15,000 $50,000,
with the added complexity that the
adoptive parents may have to travel to the foreign country to meet and
perform the adoption in that place under that country’s laws. Expense of
travel and housing will be additional costs to the adoptive parent, as will
issues of a more stringent home evaluation for immigration issues and the
costs for services of attorney or representative in the foreign country. Placement by State
agency or social services department - Usually without charge to the
adoptive parents, these placements often occur within foster parenting
situations but may also result from direct placement
applications. Placement of special needs children by either a licensed child
placing agency or a state agency may involve entitlements for the child’s
medical care or support which are to be paid after the adoption on a monthly
basis. In all regards, when you have questions
about the way the law would apply to any situation, you should seek the
advice of a competent, experienced attorney. |
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