A bill allowing adoptive parents to forge binding agreements establishing what kind of contact adopted children will have with their biological relatives is before the Georgia General Assembly this session.
The bill’s backers say their main goal this session is to generate discussion about how to regulate and enforce post-adoption contact agreements.
“When I first started practicing, the thoughts were adoption should be confidential. There was a lot of secrecy around adoptions,” said Rep. Mary Margaret Oliver, D-Decatur, a lawyer whose has represented adoptive parents. “Now over time, there is more of a presumption of openness. If a child knows his or her own story and has information, that’s better and healthier than fantasy or fear.”
Other family law practitioners wonder whether codifying such agreements, which exist currently in Georgia as informal accords, could lead to more litigation and discourage potential adoptive parents by making court trouble more likely.
House Bill 21, submitted by Oliver, would allow adoptive parents and the child’s birth relatives to enter into an agreement that would set up continued contact after the adoption is finalized. The bill would establish the child as a party to the agreement, requiring any child 14 or older to agree to its provisions and any changes. The bill also would require the court to deem the agreement to be in the best interest of the child.
Under the legislation, a violation of a post-adoption contact agreement would not nullify or invalidate an adoption.
Oliver said she did not write the bill to respond to a particular case in which a party has tried to enforce an agreement in court. Instead, she said that Georgia needs to adopt a policy because there is no state law or case law determining whether contact agreements are enforceable.
“Families in Georgia that have post-adoption agreements, they really don’t know if they could be upheld by the Georgia Supreme Court. … They’re in limbo,” she said.
Jeanne “Diane” Woods, a partner at Huff, Woods and Hamby who has practiced adoption law for three decades, said she has mixed emotions about the bill.
“It could be therapeutic for a child to continue to see their birth families,” Woods said. “But in some families, they need a clean break.”
Woods, who also chairs the public relations committee for the Georgia Council of Adoption Lawyers, said she believes the bill could encourage birth parents or relatives to seek modifications of their contact agreements, which would result in more court appearances. Birth parents also may be more inclined to make having an enforceable agreement a condition of adoption, Woods said.
“Some folks may not want to have birth parents involved at all,” she said. “I wonder if this will have a chilling effect on adoptions, because if birth parents push [contact agreements] it would mean adoptive parents could get cold feet.”
David Marple, a partner in Davis, Matthews & Quigley’s domestic relations and family law section, said he also worries that the legislation would lead to increased litigation.
“Either adoptive parents would be trying to get these things tossed down the road and having a difficult time doing it, or biological families would be coming in and saying, ‘We want more. We want more,’” Marple said.
The bill states that post-adoption contact agreements may only be modified or terminated if all parties agree—including the child if the child is 14 or older—and if the court finds that the revision or termination is in the child’s best interest and there has been a substantial change of circumstances.
“That’s a pretty high bar,” Marple said.
“Something that I foresee potentially happening is that everybody is feeling great about the road they are about to go down. Adoptive parents are thinking, ‘We’re getting this baby, or this child, and we understand the circumstances that the biological mom and dad are having to give up the child under, and we don’t want to treat this as an old-school thing where the child doesn’t even know he’s adopted until he’s 30.’
“They rush into an agreement and give the biological parents, or the biological family, certain contact and visitation and then that just doesn’t seem to be working out. Attitudes change,” said Marple. “It starts to confuse the child, but the judge who did the adoption doesn’t think all these changes are substantial. And now, the adoptive parents are like, ‘Biological mom and dad have all these rights we agreed to at the time, but that’s not what we foresaw.’ They are locked in and they can’t do anything to change it until the child turns 14.”
Marple said he’s also concerned about a provision in the bill requiring that post-adoption contact agreements to be filed with the court no later than 30 days after the filing of a petition for adoption.
“That’s a small window of time to work out an agreement that will theoretically be in place for the next 18 years,” he said.
Ruth Claiborne, a founding partner of Claiborne and Surmay who has handled adoption cases since 1990, said formally recognizing post-adoption contact agreements may boost adoptions in Georgia.
Parents looking to adopt in Georgia “are losing out on opportunities because, increasingly, birth parents in the process of making an adoption plan specifically seek out adoptive parent candidates from states where such agreements are legally enforceable,” said Claiborne, who is co-chairwoman of the Georgia Council of Adoption Lawyers’ advocacy committee.
An October 2012 study by Emory University law students and the Barton Child Law and Policy Center found that 21 states and the District of Columbia have laws providing for enforcement of post-adoption contact agreements. Nine other states, including Georgia, recognize limited contact in certain cases, such as those where stepparents or blood relatives adopt a child. Georgia law allows a child’s natural grandparents to seek visitation rights in cases where stepparents or blood relatives adopt, if it is found to be in the best interest of the child.
Jim Outman, a solo practitioner with a focus on family law and child advocacy who adopted a son 39 years ago, said he believes the state needs to establish some guidance as contact between an adopted child and birth relatives is more common.
“I used to do all closed adoptions and have not done a closed adoption now in over 10 years. Also, with social media, children are finding their birth parents, and birth parents are finding children that they released to adoptions, many times without any control, and there is a need for professionals to know how to handle the contact,” said Outman, who also is co-chairman of the Georgia Council of Adoption Lawyers’ advocacy committee.
He added, “Counseling is very important and having a post-adoption contact agreement is not an end-all, [but] it is a step in the direction of establishing a process to handle communication and avoid surprises.”