Post Adoption Contact Agreements

 

A post adoption contact agreement is an arrangement that allows for contact or communication after a child’s adoption has been finalized. These agreements are commonly part of "open" adoptions. 

Post adoption contact agreements can be made between a child (who must be a party if over the age of 12) and/or the adoptive family and members of that child’s birth family. If the child is an “Indian child” as defined by federal law, the child’s tribe may enter into a post-adoption contact agreement with the adoptive parents. 

Post adoption contact agreements typically address visitation and provisions for sharing information about the child in the future. No matter how well the families get along before the adoption, it is very important that everyone is clear on their expectations after adoption finalization. The amount of contact will be decided by the people involved and can range from several times a month to every few years, and can be modified over time as needed.

In California, post adoption contact agreements are governed by California Family Code section 8616.5 and are further discussed below.   

 

General Information Regarding Post Adoption Contact

 

History of Open Adoption

Today, most adopted children and youth know that they are adopted, and many adoptive families have had some contact with birth families. A national study of adoptive families in the United States found that in approximately one-third of all adoptive families, the adoptive parents or the adopted child or youth had some contact with the birth family after the adoption. Post adoption contact occurred more often in private domestic adoption (68 percent) as compared with adoption from foster care (39 percent) and international adoption (6 percent). A more recent study among U.S. adoption agencies reported that almost all (95 percent) of their domestic infant adoptions were open.  See Openness in Adoption: Building Relationships Between Adoptive and Birth Families Child Welfare Information Gateway Fact Sheet for Families January 2013.

Several factors have contributed to the increasing openness of adoption.  First, there is growing awareness of the negative effects of secrecy and the benefits of openness for adopted children. Second, in response to large numbers of adoptees returning to adoption agencies seeking information, states have changed adoption laws. Third, social media is connecting adoptees to their biological families. Choosing openness at the time of the adoption may provide greater control over as well as preparation for future contact and facilitate communication between parties.

 

Rights of Parents in an Open Adoption

Except in tribal customary adoptions, the rights of birth parents in dependency cases end when the order terminating parental rights becomes final. In any adoption, except for tribal customary adoptions, birth parent rights are legally and permanently transferred to the adoptive parents.  Relationships can continue in an open adoption. It is important to emphasize that even in a fully open adoption, adoptive parents and birth parents do not parent their child together. In all forms of adoption only the adoptive parents have the permanent legal rights and responsibilities for parenting and raising the child.

 

Post Adoption Contact Must Benefit the Child

Prior to adoption finalization, the adoption agency’s required written assessment of the child must include “whether the child would benefit from continuing contact with members of his or her extended family after an adoption.” CDSS Adoption Program Regulations, Procedures for Agency Adoptions, 22 Cal. Admin. Code §35127.1(3)(a). 

Post adoption contact agreements are permitted and encouraged only if there is benefit to the child and is in that child’s best interest. See California Family Code §8616.5(a)-(b)(1)

According to the US Department of Health and Human Services Children’s Bureau, post-adoption contact can benefit the child in the following ways:

  • Establish a sense of connection and belonging.
  • Develop a deeper understanding of their identity and a greater sense of wholeness.
  • Gain access to important genetic and medical information.
  • Preserve connections not only to family but also to their cultural and ethnic heritage.
  • Develop a better understanding of the reasons for placement, which can lessen feelings of abandonment and increase a sense of belonging.
  • Relate to birth family members as real people with strengths and flaws rather than idealized (or overly negative) fantasies.
  • Increase the number of supportive adults in their lives.
  • Create a foundation for lifelong relationships.

For more information, please review these fact sheets from the Child Welfare Information Gateway, U.S. Department of Health and Human Services, Children’s Bureau:

 

Questions to Consider Prior to Entering into an Agreement

Open adoption is not for everyone. Under certain circumstances, ongoing contact between a birth and adoptive family is not in a child’s best interest. This may be true when a parent has mental or behavioral issues and is unable to maintain a healthy relationship or respect appropriate boundaries with a child. In some instances, contact might result in additional trauma for a child who has already been victimized by abuse or neglect.  Additionally, birth parents may want privacy in which to move on with their lives. Further, adoptive parents may have concerns about interacting with the birth family or want greater control over the information that their child receives.

  • What would contact between our family and our child’s birth family mean to our child?
  • Do I want my child to know about his or her family background and related information?
  • What forms of communication (letters, emails, videos, Facebook, phone calls, visits) am I comfortable with?
  • At what age should our child be included in contact with his or her birth family?
  • What role will our child’s birth parents and/or other birth relatives play in our child’s life?
  • How will openness with one child’s birth family affect adopted siblings who have different levels of openness?
  • How will we react if we choose a closed adoption and our child and birth parents later establish contact through social media or other avenues.

Making an open adoption work requires commitment to building and maintaining healthy relationships between birth and adoptive families:

  • Stay focused on what is in the best interests of the child, which may not always be the same as the preferences of the birth and adoptive families.
  • Show respect for and acceptance of the other family members.
  • Set clear boundaries of what and what is not acceptable in terms of contact and communication, and respect the limits requested by other parties.
  • Maintain open communication that reflects a genuine commitment to maintaining connection.
  • Be flexible and recognize that needs may change over time.

The impact of social media:

  • Increasing numbers of adopted people and their birth families are finding each other through social networking sites whether the adoption is open or closed.
  • Connections are being made between adopted people and their birth families without the benefit of support systems.
  • Online contact may occur with a preteen or child before the young person is developmentally ready.
  • Professionals urge adopted children and youth, and their adoptive families, to think through their contact and expectations and prepare for a range of potential emotional reactions.
  • Adoptive parents need to monitor and manage their child’s age-appropriate use of the internet and of social media.
  • Adoptive parents need also to respond to questions about the birth family, provide age-appropriate information, prepare the child that the birth family may make contact with them on line, and discuss potential responses, i.e. prepare themselves and their children.

It is ultimately up to the adoptive parent to determine what works best for their adopted child. Post-adoption contact can include a wide range of possibilities for maintaining connections and can vary greatly from case to case. Each agreement should be crafted based on the needs of the specific child and the goals of the parties involved. 

For more information, please visit Child Welfare Information Gateway.  See also Child Welfare Information Gateway, “Openness in Adoption: Building Relationships Between Adoptive and Birth Families,” January 2013

 

Entering into a Post Adoption Contact Agreement is Voluntary

Post adoption contact agreements are voluntarily entered into by the child or his/her adoptive parents.  Agreements are made with the child's birth relatives, including but not limited to birth parents.  Agreements can also be entered into with an Indian tribe. See California Family Code §8616.5(a)-(b); see also Welfare and Institutions Code § 366.26(a); see also California Rules of Court 5.451(b)

 

Exception for Native/Indian Children

While otherwise voluntary, the juvenile court may order the parties to a dependency case involving a native child (referred to in the applicable federal law as as an “Indian child”) to engage in permanency planning mediation in good faith prior to issuing the order of adoption. See California Family Code §8616.5(k)(1).

Prior to issuing the order of adoption, the juvenile court may modify prior (or issue new) orders as necessary to ensure the best interest of the Indian child is met including, but not limited to requiring the parties to engage in further family mediation services for the purpose of reaching a post adoption contact agreement. See California Family Code §8616.5(k)(2).

 

Visitation or Personal Contact for Pre-Existing Relationships Only

The child must have a preexisting relationship with the relative in order for the relative to enter into a post-adoption contact agreement that includes visitation or other personal contact. If there is no preexisting relationship, contact shall be limited to sharing of information about the child.  See California Family Code §8616.5(b)(3).

 

Post Adoption Contact Agreements for Siblings

The importance of sibling relationships is clearly recognized in California statutes.  The relationship between siblings survives termination of parental rights and post-adoption contact should be encouraged so long as it is in the best interest of the child.  Except in situations where the court determines by clear and convincing evidence that sibling interaction is contrary to the safety or well-being of the child, the county placing agency is required to do the following in order to support and maintain the sibling relationship:

  • Train prospective adoptive parents on the importance of sibling relationships to the child.
  • Counsel prospective adoptive parents on methods for maintaining the sibling relationship post adoption.
  • Encourage the prospective adoptive parents to make a plan for facilitating post adoptive contact
  • Convene a meeting (after TPR and before adoption finalization) with the child, sibling(s) of the child, prospective adoptive parents, and a facilitator for the purpose of deciding whether to voluntarily execute a post-adoption sibling contact agreement UNLESS the agency determines such a meeting or agreement would be contrary to the safety and well-being of the child or the child requests the meeting not occur.  NOTE:  the child may petition the court for an order requiring the county agency convene this type of meeting.

See Welfare and Institutions Code §16002(e).

In post termination of parental rights status hearings, the social worker is to report on whether there should be post-adoption sibling contact and whether there is a plan to facilitate that contact. See Welfare and Institutions Code §366.3(g)(7); see also California Family Code 8715(b) and (c).

If, following the entry of an order for sibling contact, it is determined by the adoptive parent(s) that sibling contact poses a threat to the health, safety, or well-being of the adopted child, the adoptive parent(s) may terminate the sibling contact. The adoptive parent(s) must submit written notification to the court within 10 days after terminating the contact, specifying the reasons why the health, safety, or well-being of the adopted child would be threatened by continued sibling contact. See Welfare and Institutions Code  §366.29(b).

 

Post Adoption Contact Agreements: Process and Procedure

California Rule of Court 5.451 requires all post adoption contact agreements to be on the court form Contact After Adoption Agreement (ADOPT-310).

 

Permanency Planning Mediation

Permanency planning mediation is the process by which parties can discuss whether a post adoption contact agreement is appropriate in their case. Permanency planning mediation is voluntary. Any party can decline to participate at any time (see exception for native or indigenous children below). The court, county social worker, CASA, or minor’s attorney can refer a case to permanency planning mediation. Once started, the mediation may take up to 90 days to complete and is confidential.  If all parties agree, the process may result in the development of a Post Adoption Con­tact Agreement. 

The Consortium for Children, a nonprofit organization, provides permanency planning mediations within the State of California.  For more information about the mediation process, please visit the Consortium for Children's website.

 

Enforceability, Modification and Termination of the Post Adoption Contact Agreement

Once an adoption petition is granted and the adoption order is issued, the juvenile court's dependency jurisdiction is terminated. However, if the adoption was granted by the juvenile court, it has continuing jurisdiction over actions to enforce the agreement. If the adoption was granted by a family court, enforcement proceedings must be filed in that court. The court form for seeking enforcement is Request to: Enforce, Change, End Contact After Adoption Agreement (ADOPT-315)

The judge will not act on a petition to enforce, modify or terminate a post adoption contact agreement unless all parties who signed the Contact After Adoption Agreement (ADOPT 310) have attempted (in good faith) to come to an agreement using mediation or some other type of alternative dispute resolution.

After the adoption petition has been granted by the court, the adoption cannot be set aside due to the failure of an adopting parent, a birth parent, a birth relative, an Indian tribe, or the child to follow the terms of this agreement or a later change to this agreement.

A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.

See California Family Code §8616.5; see also Welfare and Institutions Code §366.29; see also California Rule of Court 5.451.

 

Judicial Council Forms

ADOPT 310 - Contact After Adoption Agreement

ADOPT 315 - Request to: Enforce, Change, End Contact After Adoption Agreement

ADOPT 320 - Answer to Request to: Enforce, Change, End Contact After Adoption Agreement

 

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