Adoption is the most permanent of the legal relationship options, and creates forever grandfamilies both inside and outside the foster care system. In 2019, 36 percent of all children adopted from foster care were adopted by relatives.1 For some grandfamilies, however, it may not be the most appropriate option and guardianship or legal custody may be better. Before pursuing adoption, caregivers should understand all of the legal and financial ramifications of all legal options.
Legal adoption involves a judicial proceeding in which the following occurs:
- Birth parents are proven unfit or voluntarily surrender all their parental rights (such as the right to visit) and responsibilities (such as child support)
- The court must generally terminate both parents’ rights and responsibilities unless --
- one parent is dead
- a step parent is adopting or
- in some states only, paternity was never established and need not be terminated
Upon termination of parental rights:
- Relative caregivers become the "parent" in the eyes of the law. A grandmother, for example, becomes “mom.” As an adoptive parent, access to services on behalf of the child is the same as for any birth parent.
- Children can no longer automatically inherit from the birth parents' estate, be included on the birth parents' private health insurance policies, and receive benefits through the birth parent, such as military or disability. Instead, children can inherit, be included on any private health insurance policies, and receive military or disability benefits as the adoptive child of the relative. Consequently, it is important to consider these financial ramifications when considering adoption.
- Birth parents cannot reappear one day and go to court to attempt to reclaim their rights and responsibilities, as they can with other legal options.
Although adoption also involves many families outside of the child welfare system, adoption is one of the primary avenues for creating permanence for children in foster care and is therefore highly legislated. This analysis of adoption will focus on:
- State laws that provide preferences for relatives seeking to adopt children
- Adoption assistance programs that provide ongoing financial subsidies to “special needs” children adopted from the child welfare system
- Open adoption laws allowing the relative caregiver, birth parents, and child to develop an agreement for post-adoption contact
SUMMARY AND COMPARISON OF EXISTING STATE LAWS
At least a fourth of all states have explicit statutory provisions giving preferences to relatives in adoptions. These preferences are in addition to preferences for placing children with relatives in foster care, which exist under federal law and in all states.
In Minnesota, for example, relatives are prioritized for pre-adoptive placement. Moreover, “an authorized child-placing agency may disclose private or confidential data to relatives of the child for the purpose of locating a suitable adoptive home...” Minn. Stat. Ann. § 259.29.
In Ohio, If the agency is given permanent custody of the child and the foster caregiver or relative has informed the agency of their desire to adopt the child, the agency must consider giving preference to an relative over a non-relative caregiver when determining an adoptive placement for the child. Ohio Rev. Code Ann. § 5103.161.
In Texas, adoption teams must attempt to place a child for adoption with an appropriate relative. Tex. [Fam.] Code Ann. § 264.205.
Facilitate Relative Adoptions
Other state laws facilitate relative adoptions, but do not explicitly prefer them.
In Alaska, if parental or other specified consent has been obtained, state law requires its courts to grant a petition to adopt a child by a relative who has had physical custody of the child for at least 12 months before parental rights have been terminated, unless the court finds the adoption is not in the best interest of the child. Alaska Stat. § 25.23.127
Other states make it easier for relatives to adopt by allowing courts to waive certain requirements or by simply exempting relatives from requirements:
pre-adoptive investigation – AZ Rev. Stat. Ann. § 8-105
assessment and approval requirements – CO Rev. Stat Ann. § 19-5-206
placement for adoption or supervision by child welfare department or licensed agency – DE Code Ann. Tit. 13 § 904
child in residence with perspective adoptive parent and pre-placement investigation – Iowa Code Ann. § 600.08 and § 600.10
placement for adoption by child placing institution or agency or written approval of the Secretary – KY Rev. Stat. Ann. § 199.470
grandparent may file as sole petitioner for adoption, and court may grant it as such, if grandparent is married to the grandchild’s stepgrandparent and he/she does not want to be part of the adoption – LA Children’s Code 1243
home study and medical history may be waived by the court – Neb. Rev. Stat. § 43-107
evaluation and final hearing may be waived by the court – NJ Stat. Ann. § 9:3-48
home study requirements waiver – OR Rev. Stat. § 109.309
investigation or report, accounting of disbursements, final hearing time requirement, and appointment of independent counsel for indigent parent – SC Code Ann. § 63-9-1110
residency requirement – TN Code Ann. § 36-1-115
pre-placement evaluation – VT Stat. Ann. Tit 15A § 2-201
The majority of states have some type of statute concerning open adoption. Kinship foster parents typically know at least one of the birth parents, so they are already “open” in that sense. But these laws can facilitate post-adoption contact with the birth parents. The court can use them to help develop an enforceable agreement so that the child can have clear, delineated post-adoption contact with the birth parents, siblings and/or other relatives. Although enforceable by the courts, invalidation of the adoption is never a possible remedy for failure to adhere to an open adoption condition such as visitation.
After children are adopted by either relatives or non-relatives, ongoing monthly adoption assistance payments may be available. All states provide adoption assistance on behalf of children with “special needs” adopted from the child welfare system. “Special needs” are defined by each state but are not typically limited to what are generally considered special needs. They include characteristics or conditions that make it difficult to place a child with adoptive parents, such as being an older child or part of a sibling group. The subsidy payments usually end when a child turns 18 (age 19 to 21 in some states).
There are two general types of adoption assistance programs. One is for children who are eligible under federal child welfare law, Title IV-E of the Social Security Act (Title IV-E) and are paid monthly subsidies using that pot of federal money. The other are state adoption assistance programs that are not required to have the same restrictions found under federal law and consequently vary from state to state.
Legal expenses in obtaining adoption can be very costly. When adopting a Title IV-E eligible child with “special needs” from foster care, the federal government requires states to reimburse prospective adoptive parents for their non-recurring expenses up to $2,000. Most states also reimburse these expenses under their state programs. These expenses can include court filing fees, legal fees and transportation costs to and from the courthouse.
Under the federal program, monthly adoption assistance cannot exceed the foster care rate and children are categorically eligible for Medicaid; states seem to follow the same rate restriction for their programs and provide Medicaid for the children.
The North American Council on Adoptable Children (NACAC) website at www.nacac.org/help/adoption-assistance/adoption-assistance-us/state-programs/ has comprehensive profiles for each state’s adoption assistance program, along with other useful information.
The legal concept of adoption dates back only about 160 years. Adoption laws were not meant to interfere with the practice of relatives assuming responsibility for children whose parents could not care for them. One of the earliest statutes was enacted in Massachusetts in 1851. Only since 1929 have all states allowed legal adoption.2
Because a third of the foster care system is comprised of children in relative care and adoption has long been legally recognized as a preferred avenue for creating permanence for children, relatives are often encouraged by the child welfare system to adopt. Since studies have shown that children thrive in relative care, a subset of laws granting relatives preference in adoptions has arisen. In some cases, adoption well suits the needs of all involved. Caregivers may continue to get financial assistance through adoption subsidies and the child may have a greater sense of belonging, in addition to other advantages.
Open adoption laws originated roughly twenty-five years ago and roughly doubled between years five and ten. More are undoubtedly on their way. These laws are not designed solely for relative caregivers, but they can suit the needs of these families well. The enforceable contract can make birth parents more comfortable with the adoption since it provides for ongoing visitation, contact with the child or at the very least updates, such as yearly photos. Birth parents remain, in a sense, part of the family.
Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and is available for all users in the state law and legislation database. That database, as well as the other information on this website, is an ongoing project. If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author: Ana Beltran, co-director, Generations United's National Center on Grandfamilies, at email@example.com.
2 Schwartz, M. (1996). Reinventing guardianship: Subsidized guardianship, foster care, and child welfare, Review of Law & Social Change, 12,441-82.
TRIBUTE TO JESSIE, GEORGE AND KYLE HETHERINGTON
HON. RAÚL M. GRIJALVA
IN THE HOUSE OF REPRESENTATIVES
November 16, 2005
Mr. GRIJALVA. Mr. Speaker, I rise to day to honor Jessie, George, and Kyle Hetherington. Jessie and George Hetherington, two grandparents, have faced many obstacles in the process of adopting their grandson, Kyle. This family is to be commended for they have persisted through personal and legal struggles to ensure Kyle's adoption.
Kyle entered Jessie and George's home in October of 2000. This family joins the growing trend of 6 million children being raised by ``Grand Families' keeping children in loving homes. The Hetherington family is exemplary proof that often the best chance a child has at leading a normal life filled with affection is with a family of their own.
It is Grand Families such as the Hetherington's that provide a safe and stable home for children who would otherwise fall into foster care systems. But the commitment to a happy family has many obstacles and requires perseverance. The determination of this family defines unconditional love.
When Jessie and George first brought Kyle home, they lived in an age-restricted community. To keep Kyle, the family moved. Finding a new home was the first obstacle. Then, 15 months later, Kyle's mother regained custody. Kyle later returned to the Hetherington home, but his health, physically and emotionally, was worse than before. Since then, the family has been through several legal battles to keep Kyle from being returned to his mother, an absent father fighting Jessie and George's adoption rights, and accessing services for Kyle's health needs.
The family has undergone an intense legal pursuit but has been guided with love, patience, and support from Kinship, Adoption, Resource, Education (K.A.R.E.) program. The K.A.R.E. program works with Grandparents raising Grandchildren, and helped the Hetherington family navigate a system that does not understand the strength and needs of Grand Families.
The Hetherington family will soon celebrate a legal victory and adopt Kyle on December 6 of this year. Their emotional and legal struggle represents the battle of will over circumstance. This day is an early birthday gift for Kyle and a life long family gift. Kyle is a second grader at Miller Elementary School in Tucson, AZ and turns 8 on November 23.
Jessie and George Hetherington's love, hard work, and dedication, and that of all Grand Families, should be acknowledged today.
As Jessie states "Love can work wonders done in the right way."
(The above story is a reprint from the Congressional Record, proceedings and debates from the 109th Congress, November 16th, 2005.) Jessie, George and Kyle Hetherington faced many obstacles in their journey to adopt Kyle. Many grandfamilies chose to adopt their grandchildren but face challenges related to unsupportive policies and financial constraints. Policies that support efforts of grandparents and other relatives to provide safe and loving homes through adoption or guardianship help ensure more positive outcomes for families like the Hetheringtons.
Adoption and Guardianship for Children in Kinship Foster Care
This brief by Generations United with support from the Dave Thomas Foundation for Adoption focuses on adoption and guardianship for children in kinship foster care, so that these children can exit foster care into permanent families (2018).
NEWLY UPDATED National Comparison Chart: Adoption and Guardianship for Children in Kinship Foster Care
This chart by Generations United with support from the Dave Thomas Foundation for Adoption is designed to help kinship foster parents compare adoption and guardianship as two options that you and the children in your care can pursue to exit foster care and create permanent families (updated 2021).
This website has information about kids waiting to be adopted, the process for adoption and some post adoption information. It is not directed at kinship caregivers who are adopting, but some of the information may be helpful.
Congressional Coalition on Adoption Institute
Nonprofit, nonpartisan organization that was founded in 2001 by advocates of children in the U.S. and around the world in need of families.
This website has quite a bit on policy issues and post adoption needs and research.
Dave Thomas Foundation for Adoption
This Foundation is dedicated exclusively to finding permanent homes and loving families for children waiting in North America’s foster care systems. Created by Wendy’s® founder Dave Thomas who was adopted, the Foundation implements evidence-based, results-driven national service programs, foster care adoption awareness campaigns and innovative grantmaking.
Kinship Adoption: Meeting the Unique Needs of a Growing Population
This brief by ChildFocus and North American Council on Adoptable Children focuses on the needs of children who are adopted by their relatives. It addresses why kinship adoption is on the rise, how kinship adoption differs from other adoptions, and what policies and practices agencies can consider to achieve successful kinship adoptions (2010).
North American Council on Adoptable Children
Find specific eligibility, benefit, funding, and other characteristics for each state’s adoption subsidy program. There is also a chart that compares the major aspects of states' adoption assistance programs.