Open Adoptions & Postadoption Contact Agreements

Stephen Howard — Stone River Law

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Open Adoptions & Postadoption Contact Agreements

Are postadoption contact agreements enforceable under Utah law?

An open adoption agreement (often referred to formally as a postadoption contact agreement) can be enforceable under Utah law only in cases where the child to be adopted is in the custody of Utah’s Division of Child and Family Services. Often this will involve a child who is in foster care.

In order to be legally enforceable, a postadoption contact agreement in Utah must be entered into and approved prior to the the entry of an order by the court finalizing the adoption. This page provides general information regarding the requirements for a valid postadoption agreements. If you are considering an open adoption or postadoption contact agreement, obtaining good legal counsel and assistance is strongly advised. Contact us today to see how we can help you.

Open Adoptions Generally

The term “open adoption” often has informal connotations associated with it as well as more technical legal meanings. In the most general sense, an open adoption could involve simply informing both the birth parents and the adoptive parents of each others’ identities. In some open adoptions, the birth mother or birth parents meet together with the adoptive parents prior to placing the child for adoption or before the adoption is finalized. The birth parents might want to get to know the prospective adoptive parents before feeling comfortable making a final placement decision.

The term “open adoption” can also refer to an adoption where a formal agreement has been made between the adoptive parents and birth parents or members of the adoptee’s biological family allowing for communication, visitation, or other contact between the birth parents or family and the adopted child. In order to be enforceable at law, this kind of postadoption contact agreement must meet various statutory requirements and must be formally approved by the court prior to finalization of the adoption.

Eligible Family Members

An enforceable postadoption agreement can only be made when the child to be adopted is in the custody of Utah’s Division of Child and Family Services. The adoptive parents are essential parties to a postadoption contact agreement. If the adoptive parents are not formal parties to the agreement, the court cannot approve a formal postadoption contact agreement.

Birth parents may be involved as parties to the agreement, but failure of a birth parent to participate in the agreement does not prevent other eligible family members from entering such an agreement. Other eligible birth family members are limited by statute to only the following: a grandparent, stepparent, sibling, step sibling, aunt, or uncle of the prospective adoptive child.

Requirements for Court Approval

As noted above, court approval of a postadoption contact agreement must be obtained before the adoption is finalized. If an adoption is finalized without court approval of the postadoption contact agreement, the court loses authority to approve or enforce such an agreement.

Finalization of the adoption confers all legal rights of a parent on the adoptive parents. Once all parental rights have been fully vested in the adoptive parents, the court no longer has any power to approve or enforce a postadoption contact agreement. Even if other birth family members reach an agreement with the adoptive parents, such an agreement will be informal and cannot be legally enforced by the court.

In order to obtain court approval of a postadoption contact agreement, the following conditions must be met:

  • the court must find that the agreement is in the best interest of the child;
  • all parties who have either rights or obligations under the agreement must sign the agreement;
  • if the child being adopted is 12 years of age or older, the child must also approve the agreement;
  • the agreement must describe visits that may be allowed under the agreement;
  • any supervision that is to be required during visits must be described;
  • information or updates about the adopted child that is to be provided by the adoptive parents must be described;
  • grounds or terms under which the adoptive parents may deny visits or cease providing information must be set out in the language of the agreement.

In addition to the above terms and conditions, the agreement must contain a notice to the parties that in the event of any subsequent legal action to enforce, modify, or terminate the postadoption contact agreement, the court is required to presume that the judgment of the adoptive parents’ is correct as to the best interests of the child. This presumption is rebuttable, but the burden of presenting evidence to rebut that presumption rests with the party challenging the adoptive parents’ judgment.

What a Postadoption Agreement Cannot Do

In order to be approved by a court, a postadoption contact agreement cannot:

  • restrict the adoptive parents’ ability to choose to move out of state; or
  • provide for modification of the agreement without the consent of the adoptive parents.

Best Interest of the Child

Utah Family Law AttorneysIn many areas of family law that involve children, the guiding principle that the court will follow requires a determination of what is in the “best interest” of the child. This principle also governs matters involving adoptions and postadoption contact agreements. While the interests of the birth parents and other members of the birth family may be considered by the court, those interests cannot be allowed to trump the court’s consideration of what will ultimately be best for the child.

Contact a Utah Attorney for Adoption Help

The adoption process can be an emotional roller coaster for adoptive parents, birth parents and family, and for the child being adopted. The legal processes involved in an adoption are complex and can be confusing. Choosing the right attorney can be one of the most important choices you make. If you are considering adoption, contact today to see how we can help.