The act of adopting creates a parent-child relationship between the person being adopted and his/her adoptive parent and totally terminates such a relationship with the former parent. One can adopt a stepchild, a relative or a person unrelated to them. It is also possible to adopt an adult. A single person can adopt, as can an unmarried couple or a gay person or couple. Adoptions usually include a change of name of the person being adopted.
In order to be able to adopt in Oregon, either the adoptive parent or the placing parent or the person being adopted must have been an Oregon resident for at least six months. Also, note that a child who is 14 or older must consent to his or her own adoption.
Information for Birthparents
Any decision to place a child must be yours alone, without undue influence from any other person. You are very strongly encouraged to consult a licensed adoption agency and/or an attorney of your own choice in making your adoption plan and have them work with you throughout the process.
You have the right to choose with whom you would like to place your child. You can be as actively involved — or not — as you want in the planning process. You are entitled to meet with prospective adoptive parents and to have whatever questions you may have answered. You have the right to adoption-related counseling at no expense to you. You may choose to have a legally binding agreement with the adoptive parents that gives you the right to receive letters and pictures or electronic communication and/or the right to visit the child. Such an agreement should be made prior to placement and must be filed with the court if it is to be legally binding.
Consent of a father may or may not be required, depending on the circumstances. If his consent is taken, it can be done before or after the birth. The birth mother can consent to an adoption only after the child is born. It can be done any time after she recovers from the immediate effects of the birth. A consent to adoption and certificate of irrevocability will need to be signed. You should not sign such papers unless you are absolutely certain that this is what you want to do. You should sign only after consulting a licensed adoption agency or an attorney who represents you and not the adoptive parents.
Information for Adoptive Parents
You can adopt a child through the State of Oregon Department of Human Services (DHS), or a licensed private adoption agency or directly from the birthparent as an independent adoption with the assistance of an attorney. Adoptions are also possible from certain foreign countries. Paid adoption facilitators are illegal in Oregon and should be avoided.
Adopting through the Oregon Dept. of Human Services (DHS)
Children come into the custody of DHS either through court terminations of parental rights or parents voluntarily giving custody of the child to the state. The state places the children for adoption. This may be after a period of foster care. Sometimes the children are placed on a legal risk adoption basis while the state is in the process of terminating parental rights. These children are often older or with special needs. If a relative is available and wishing to adopt, the state will try to place with that relative. However, effective July 2015, the state legislature directed DHS to adopt rules placing "current caretakers" on equal footing with relatives when making an adoption placement decision. A “current caretaker” means a foster parent who is currently caring for a ward who is in the legal custody of the Department of Human Services and who has a permanency plan or concurrent permanent plan of adoption; and who has cared for the ward, or at least one sibling of the ward, for at least the immediately prior 12 consecutive months or for one-half of the ward’s or sibling’s life where the ward or sibling is younger than two years of age. Subsidies from the state to pay for children with special needs may be available. Attorney fees and costs are then paid by the state. Occasionally a child is placed in a state by a comparable department from another state. Persons interested in such adoptions should contact their local DHS office or an adoption agency that is part of the Special Needs Adoption Coalition.
Adopting Through a Private Adoption Agency
Adoption agencies exist to provide counseling to adoptive parents and birthparents and to place children for adoption when such is the desire of the parties. Adoption agencies are licensed by the Oregon Department of Human Services. They must meet high professional and ethical standards. It is illegal to operate an adoption agency without a license.
Adoption agencies are authorized to take legal custody of children and place them with adoptive parents. While the agency has discretion as to where to place the children, it is usually done with a birthparent working with them along with specific adoptive parents. Sometimes a birthparent will come to the agency and ask that the agency find adoptive parents for the child. In such cases, the birthparent can be as involved or as uninvolved as she wants to be in selecting and meeting the adoptive parents. In other cases, the adoptive parent will come to the agency with a birthparent who has decided to place with them, and request that the agency help out in making the actual placement.
Depending on the circumstances, consent to adoption by the father may or may not be required. His involvement may be of value even if not legally required. He can sign a consent to adoption and certificate of irrevocability before or after the birth (the certificate is not effective until the mother signs and the child is placed). The mother can sign the papers any time after birth — so long as she has recovered from the immediate effects of the birth. The consent becomes irrevocable as soon as the child is placed with the adoptive parents. A newborn baby can be placed directly from the hospital.
Depending on agency policy, the adoptive parents may file a petition for adoption in circuit court immediately after placement or after a period of post-placement supervision.
Independent Adoptions
In an independent adoption, a child is placed with adoptive parents directly by the birthparent. There is no adoption agency custody of the child. The birthparent is choosing to place the child directly with specific adoptive parents.
Independent adoptions are best done with advance planning. Adoptive parents should have a pre-placement home study done on them by an adoption agency licensed by the state to provide independent adoption home studies. Birthparents need to connect with counsel — either an adoption agency that works with parties in independent adoptions, or an attorney who does not represent the adoptive parents. Issues to be worked out include: the level of openness in the adoption and whether to have an open adoption agreement; obtaining medical and genetic information; what if any involvement the father will have; finances of the adoption (it is legal to pay birthmother living expenses while she cannot work due to pregnancy and birth; it is not legal to pay a purchase price for a child); and plans for the hospital and actual birth. Additional planning is needed if the child is entering or leaving the state for purposes of adoption or if the child would qualify as a member in an American Indian tribe.
While a father may sign a consent to adoption and certificate of irrevocability form, either before the baby is born or at the same time that the mother signs, the mother can sign only after birth; she can sign as soon as she has recovered from the effects of birth so as to be at normal mental capacity. After the consent to adoption and certificate of irrevocability are signed, the attorney should prepare the petition for adoption as soon as possible. The adoptive parents will need to sign. Only when the child has been placed, the birthparent signs the papers upon consulting their own counsel, the medical and genetic information is provided, the petition for adoption along with home study are filed in court, and the judge signs an order granting the adoptive parents temporary guardianship of the child does the consent become irrevocable. After the adoption agency files a post-placement report to the court, the general judgment of adoption is submitted.
International Adoptions
Some foreign countries allow U.S. citizens to adopt their children. Such adoptions must comply with Oregon law, U.S. immigration law, the law of the foreign country and in many countries, The Hague Convention on Intercountry Adoption.
Almost all international adoptions are handled through adoption agencies. If the adoption is from a Hague Convention country, it is required that this be done through a Hague-accredited entity. Several Oregon adoption agencies are Hague-accredited. Many non-Hague countries also require that adoptions be done through licensed agencies. Only a few countries allow adoptive parents to work directly with a source in that country; it might be more possible if the adoptive parents are long-term residents of that country.
Some countries grant an actual adoption of the child to U.S. citizens. Other countries grant guardianship, either to the adoptive parents or to the adoption agency, with the expectation that the adoption will be completed in the United States. If the child enters on a guardianship, the adoption can be completed in Oregon, working in conjunction with the adoption agency. If the child enters with an actual adoption, it is still recommended that the child be re-adopted in Oregon court.
Children who enter the United States for adoption are usually admitted on an orphan visa. The U.S. Consulate in the foreign country grants the visa after it is satisfied that the law of the foreign country has been followed and that the child is an actual orphan. There is no quota as to the number of visas granted.
If a child was actually adopted abroad, he or she automatically becomes a U.S. citizen upon entry into the United States. If the child enters on a guardianship, U.S. citizenship becomes automatic upon completion of the adoption in this country.
Stepparent and Second Parent Adoptions
This is commonly done when one spouse adopts the other’s child. It can also be done if the parties are not married (second parent adoption) — either as an opposite sex couple or as a same sex couple.
In a stepparent adoption situation there may be another legal parent whose rights have not been terminated; if so, it is necessary to obtain the written consent of that parent to the adoption. If obtaining consent is not possible, the parent must be properly served with notice of the adoption and granted the opportunity to object to the adoption in court. Should he not object, his rights can be terminated by default.
Before a stepparent adoption can be granted, a State Police/Child Protective Service check must be made on the adopting parent, as well as any other adults living in the home (other than the parent). If a matter that would cause serious concern about that person’s being with the child is discovered, the state has the right to require a home study by a licensed adoption agency. Usually home studies are waived.
Indian Child Welfare Act
The Indian Child Welfare Act (ICWA) has an important impact on adoptions. It applies to both agency and independent adoptions, including stepparent adoptions. For the adoption of Native American children, the ICWA sets preferences for who may adopt and has other specific rules for these adoptions. Preference is given, in order, to: a member of the child’s extended family, 2) other members of the child’s tribe, or 3) other Indian families. The order of preference must be followed absent a finding of good cause. Further, unlike most adoptions, an adoption governed by ICWA can be invalidated within two years of entry where consent was obtained through fraud or duress.
Adult Adoptions
An adult may adopt another adult. These adoptions are done for sentimental reasons — to legalize a parent-child relationship that the parties have had over the years. A petition for adoption is filed with the court, along with consent of the person being adopted and sufficient information to show the court that the adoption is being done for legitimate and not fraudulent reasons. It is not necessary to obtain consent from the adoptee’s former parents. The court does have the right to interview the parties to establish that the adoption is for legitimate reasons — although this usually does not happen. An adult adoption does change inheritance rights should any party die without a will — the adoptee is the legal child of the adoptive parent and not the former parent.
After the Adoption
After the adoption is completed, a new birth certificate will be issued by Oregon Vital Records (or the vital records department of the state of the child’s birth), showing the adoptive parents as parents and the child under his/her new name. If the child was born abroad, a certificate of foreign birth will be issued by Oregon Vital Records.
Adoptions are permanent and cannot be reversed. The only way to undo an adoption is for the former parent to adopt the person back. The fact that he or she was an original parent has no legal relevance in adopting the person back. Adoptive parents can also place the child for adoption with someone else.
Adoption files are sealed by the court, and can be unsealed only on judicial order for good cause. Mere curiosity as to what is in the file is generally not good cause. Effective Jan. 1, 2014, adult adoptees can examine and copy the court file regarding their adoption (minus the home study). Also, persons whose consent was required will have access to more limited portions of the court file.
Oregon born adoptees can receive copies of their original birth certificates at age 21. Most other states do not allow this.
The Oregon Voluntary Adoption Registry allows adoptees age 18 or older to receive non-identifying information about their adoption. It also allows adoptees age 21 or older and birthparents to receive identifying information about each other if both parties sign up with the Registry.
Information concerning the Voluntary Adoption Registry and other helpful Oregon adoption information is available on the Oregon Department of Human Services website.
See family law resources listed here.
Legal editor: G. Aron Perez-Selsky, May 2018
