The Legal Basics of Adoption

adoptionAdoption has become a more frequent and valued method to create or expand a family. Children obtain a forever home while parents gain a new family member to love, guide and cherish. Stepparent adoptions are the most frequent, but adoption of foster children is becoming more common. Even adults may benefit from being adopted. Adoption is governed by both federal and state laws. Adoption laws in each state may differ somewhat, but the basics are generally similar.

Discussion of adoption generally conjures an image of an infant or young child being welcomed into a family. However, a person can be adopted at any age. A person 18 years or older may benefit from adoption in many ways from creation of a lasting, legal relationship with a valued parental figure to obtaining the right to inherit or being covered by the parent’s health insurance policy.

Most states allow adoption by anyone 18 years of age or older. Five states set the minimum age at 21 or higher. Some states may also require the adoptive parent to be a minimum number of years older than the adoptee. For example, New Jersey and five other states require the adoptive parent to be at least 10 years older. Those seeking to adopt must be legally competent. Felony convictions for crimes involving children or for abuse, assault or homicide usually disqualify one from adopting.


Consent of a child’s biological parents, legal guardian and any government agency having custody of the child must be obtained prior to adoption. Most states also require the child’s consent after a certain age, usually 12 to 14. Obtaining consent from a biological parent often proves the most difficult obstacle to adoption.

Written notice of the intended adoption must be provided to a biological parent if possible. Even if the father is unknown or has not established legal rights to the child by a paternity action, notice must be provided to any presumed father. If adoption involves a child about to be born, consent of the biological parents may be obtained before birth but, in many states, will not be effective until 48-72 hours after the birth.

When a biological parent cannot be located, mail to that person’s last known residence or publication of notice in the newspaper where the parent resided may suffice. The goals are to give a biological parent the opportunity to maintain the legal parent-child bond and to prevent disruption of an adoption once finalized.

Consent can typically be revoked any time before the adoption is final. Once final, consent may be revoked for a limited period, one to two years, and only if it can be proven that consent was obtained by fraud, coercion or lack of capacity to give consent.

If a biological parent refuses to give consent, parental rights must be terminated by the court following a hearing. Termination of rights must be in a child’s best interest. Termination generally requires proof that a parent has failed to perform basic parental duties. Failure may result from extreme abuse or neglect, incarceration, abandonment or incapacity caused by alcohol or drug abuse. Once a parent’s rights are terminated, that parent no longer has any legal responsibility for the child or the right to be involved in that child’s life.

If the person being adopted is 18 years of age or older, consent of the biological parents is not required.


In most cases, a thorough study of the adoptee’s proposed home by a qualified agency must be completed prior to adoption. The goal of the study is to ensure a child will be placed in a stable and nurturing environment. The study involves a visit to the home, interviews with prospective parents, a thorough background investigation of all family members and a review of references.

Home studies are usually not required when a stepparent is adopting the child of a spouse. In most cases, the child may have lived as part of a blended family for a significant period. The ability of the parents to care for the child has been proven over time and a strong parent-child bond established. Similarly, home studies are usually not required if the person being adopted is at least 18 years old.

Once the necessary consent and home study have been obtained, the adoption process is fairly straightforward. An adoption petition is filed in court along with consent forms and the home study. A final hearing is set at which the adoptive parents and, in many cases, the child must attend.

The hearing itself will usually be brief. A judge will typically review the file to be sure all necessary documents are present and will ask a few basic questions to the parents and child. The final decree will be signed. Most courts allow and often invite adoptive parents to bring cameras to the final hearing so that pictures can be taken to preserve this important life-changing event.


Adoptive parents should obtain several certified copies of the adoption decree. This can be used to obtain a new birth certificate for the child which will include the child’s new name and the adoptive parents’ names as shown in the decree. In all ways, the adoptive parents and adoptee have the same legal rights and obligations of a biological family. The parents owe a duty of care and support to the child. The child can legally inherit from the parents.

Adoption files are sealed by the courts in most states and are unavailable for general public review. States usually have procedures to allow parties to the adoption to reopen the files for legitimate purposes.

Adoptions of children who are foreign born or Native American are more complex and time consuming. Representation by an attorney is recommended for any adoption, but is generally required when it involves a child from another country or of Indian heritage. Bringing a child into your family is too important to risk missing an important legal requirement.

Navigating the legal process of adoption and the court system can be challenging at times. Tension and emotions often run high, especially when hearings are required to terminate parental rights so that an adoption can proceed. However, the potential rewards are well worth the effort. When adoption day in family court finally arrives and decrees are signed, lives are changed in a positive way and families are strengthened.