It is very common for prospective parents to try to adopt a child from a different state than their home state. Though adoption laws vary across the country, there are interstate procedures in place to facilitate the process.
The Interstate Compact on the Placement of Children (ICPC) lays out the rules for out-of-state adoption. In general, the parents must comply with the laws of the “sending” state, the state in which the child/birth mother resides, and then get final approval from the “receiving” state, the state in which the adoptive parents reside.
However, the choice of law can depend on whether the adoption is finalized through an adoption agency or if it is an independent adoption negotiated by the parties. If the adoption is conducted through an agency, then the laws of the state where the agency is located usually apply. In contrast, if it is an independent adoption then either the laws of the sending or receiving state might apply. Courts can be lenient about choice of law, and sometimes will accept out-of-state forms if the parties have complied with the rules of the other state and ask politely in their adoption petition.
In the following explanation, Alabama laws will be used as examples of common adoption laws. But, keep in mind that Alabama law could be very different from the law in state from which you want to adopt. Make sure to consult an attorney throughout the adoption process to ensure that you’re complying with the correct adoption policies.
The first step in the adoption process is the termination of parental rights. When an attorney files an adoption petition in court, they must include appropriate consent forms from the birth mother, and sometimes the father.
It is always necessary to have the birth mother give her consent before an adoption is finalized. In some states, there is a statutory waiting period before the mother is legally able to give consent. In Alabama, there is no such waiting period and the birth mother may consent at any time, but she must reaffirm her consent after the child is born.
State law also varies on whether or not the mother may revoke her consent, and if so, when she may do so. In Alabama, consent may be withdrawn within 5 days of birth or 5 days after signing consent, whichever comes last.
Laws vary from state to state on whether the consent of the natural father/legal father is necessary. Rules for consent of the father are stricter than for the birth mother, because states define who may qualify as a father. If a person does not legally qualify, then their consent is not required.
In Alabama, for example, the law is strict on father consent. Consent of the father is only needed if the father is married to the birth mother, or if they were previously married up to 300 days before the adoption. Consent may also be required if the couple attempted to get married or if the father’s name is on the birth certificate.
This policy is on the far end of the spectrum; in some states, the father’s consent is required even if the person is not the actual father or even the presumed father, he could just be a person who has shown enough interest in the child.
After the parental rights are terminated, the next step is getting the child placed in the adoptive parents’ home. The child must actually be placed with the adoptive parents before court documents may be filed.
The ICPC requires a home-study of the adoptive parents’ home that must be approved by the sending state. The home study is usually included in a full pre-placement report, in which a state official evaluates the prospective parents and offers an opinion on whether they are a good fit for a child. Following a positive pre-placement report, the child may be moved out of their home state and placed with the adoptive parents.
After the child has lived with the adoptive parents for some period of time, it’s necessary to obtain a postplacement report. A state official will return to the adoptive parents’ home and assess their progress in building a relationship with the child. The official will confirm that the parents are treating the child well and that the home environment seems loving and supportive.
Once these documents are obtained, the final step is for adoptive parents to hire an attorney to file the appropriate documents and have the adoption finalized in court. Required court documents vary from state to state and within states.
In general, attorneys will file a petition requesting that the court approve the adoption, and provide a copy of the child’s birth certificate. Other documents that are often required include the preplacement report, a consent form from the county Department of Human Resources, parental consent forms, proof of the adoptive parents’ marriage, and the postplacement report. The adoptive parents must also provide a filing fee.
The out-of-state adoption process is lengthy and there are several requirements to ensure that an adoption is finalized. Luckily, the ICPC streamlines the process, and with the help of an adoption agency or an attorney, the out-of-state adoption process is painless.
About the Authors: This article was co-written by Katie Pickle and Chris Reid. Katie is a law clerk at the Reid Law Firm and a 1L student at Emory Law School. Mr. Reid is general practice attorney in Birmingham, Alabama. He has worked for Republican leadership in the United State House of Representatives in Washington, D.C., and was a health policy advisor to the governor of Alabama. You can contact him online or by phone at (334) 319-8225. A full description of his practice areas is available on our home page.
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