Adoption was first granted legal approval in
Federal Law
The U.S. Congress has implemented several federal laws that impact state adoption policies and child welfare services. In order to fulfill these federal requirements and receive federal funding, states must often enact new legislation, revise agency regulations, implement new child welfare programs, and/or report on child welfare efforts. The Children’s Bureau, an agency within the U.S. Department of Health and Human Services’ Administration for Children and Families, monitors state compliance with federal laws and provides federal funds for state child welfare services.
For more information on specific federal laws, please see Child Welfare Information Gateway’s Federal Adoption Law Summaries.
Federal objectives meant to assess the performance of state child welfare programs include[2]:
- Safety-related measures
- Reduce the number of children who experience further abuse and/or neglect in their families after a first case of abuse/neglect has been reported
- Reduce the number of children who experience abuse and/ or neglect in foster care
- Permanency-related measures
- Increase the percentage of permanent placements of children existing foster care
- Reduce the time children spend in foster care before reunification with their families without increasing the number of times children re-enter foster care
- Reduce the time children spend in foster care before adoption
- Stability-related measures
- Increase the stability of foster care placements so that children are not moved around multiple foster care settings
- Reduce the percentage of young children placed in group homes or institutions
Federal funding* basics:
- Two titles under the Social Security Act dedicate federal funding specifically to state foster care, child welfare, and adoptive services:
- Title IV-E
- Foster Care program: Funds for basic foster care maintenance, including: children’s food, shelter, parental visits, and case planning
- Adoption Assistance program: Funds for adoptive parents to help care for children with special needs
- Chaffee Foster Care Independence program: Funds for services for youth preparing to leave foster care, such as living skills training, education, employment initiatives, housing
- Administration and Training costs
- Title IV-B
- Child Welfare Services: Flexible funds can be used by states for a broad array of child welfare services
- Promoting Safe and Stable Families program: Funds for four types of services: family preservation, family support, time-limited reunification, and adoption promotion and support.
- While Title IV-E programs confine states’ spending to support foster care maintenance, Title IV-B programs afford states greater flexibility by allowing them to spend money on a variety of child and family services.
- $693 million of child welfare spending funded Title IV-B programs in FY 2004 vs. $4.8 billion for Title IV-E programs.
- The disparity between Title IV-B and Title IV-E funding hampers states’ ability to invest in important prevention and reunification programs that limit the time children spend in foster care.
- States need increased flexibility to spend federal dollars on those child welfare services that best serve the interests of children rather than locking them into the foster care system.
- State and local dollars also help fund child welfare services by either matching federal dollars or paying for services that federal dollars do not sufficiently cover.
* For additional information on federal child welfare funding, please see Child Welfare Financing 101.
State Law
While adoption policies vary from state to state, all states have laws specifying:
- Requirements for adoption consent
- Adoption consent is the legal agreement by a parent – or person/ agency acting in place of a parent – to relinquish a child for adoption, releasing all rights and duties over that child.
- Every state requires that the birth mother and the birth father – if he has legally established paternity – must consent to the adoption of their child, unless they are unavailable to give consent or their parental rights have been terminated.
- Parental consent is not required when parental rights are terminated by a court for abandonment of the child, failure to support or establish a significant relationship with the child, mental incompetence, or a finding of parental unfitness due to abuse or neglect.
- When neither birth parent is available to give consent, a relative, guardian, person/agency holding custody, or court becomes responsible for consent.
- Nearly all states require that older children (specified ages vary by state) give consent to their own adoption.
- Each state specifies when birth parents may execute adoption consent and how such consent may be executed. Some states require a waiting period after the birth of a child and others may require birth parents to file a petition, appear before a judge, or receive counseling.
- The right of a birthparent to revoke consent is extremely limited. In most states, consent may be revoked before the final adoption decree only under specific circumstances or within specified time limits.
- Who qualifies to serve as adoptive parents
- Generally, any single adult or married couple can be eligible to adopt, and stepparents can adopt the birth children of their spouse. Some states do not specify any other conditions necessary for eligibility to adopt.
- Some states mandate certain age requirements for eligibility to adopt.
- Some states mandate state residency as a condition for eligibility to adopt.
- How marital status or sexual orientation affect eligibility to adopt
- All states – except
- Some states specifically allow second-parent adoption – whereby a same-sex partner can adopt his/her partner's child without terminating the first legal parent's rights – based upon either statute or court decision.
- Some states prohibit marital status discrimination in adoption law.
- Some states are largely silent on the issue of adoption by gay and lesbian persons.
- For more information on same-sex adoption, please see “Same-Sex Adoption: ‘Equality’ or Religious Discrimination”
- Which children may be adopted
- While some states allow the adoption of any person, regardless of age, others specify that children must be younger than 18 or 21.
- Who possesses authority to make adoption placements
- Generally, any person or entity that has a legal right to make decisions about a child’s custody may place that child for adoption, including: birth parents, legal guardians, State Departments of Social Services, or legal child-placing agencies.
- Some states require that all adoptive placements be made by state entities or child-placing agencies that have been licensed by the state.
- Most states allow private or independent adoption and enact detailed regulations to protect both the birthparents and adopting family.
- Some states allow unlicensed agencies or intermediaries to arrange adoption placement but strictly regulate intermediary activities and compensation.
- Regulation of adoption expenses
- States regulate the expenses that prospective adoptive parents can pay birthmothers during pregnancy. Some states specify which expenses adoptive parents can pay (including maternity-related medical costs, counseling fees, legal fees, travel costs, and other related expenses), some specify which expenses adoptive parents cannot pay, and some establish a birthmother expense limit.
- States regulate the placement fees and legal expenses that adoptive parents are expected to pay. The fees charged by adoption agencies are usually determined by state administrative rules or regulations, rather than statutes.
- Some states require that all adoption-related expenses be reported to the court.
- In order to ensure that no person profits from child placement, states have enacted strict statutes to regulate the use of unlicensed adoption intermediaries.
- The factors necessary to consider in determining a child’s best interest
- When courts decide how to grant custody or place a child, they must consider the child’s best interest, or those factors affecting who is best suited to take care of the child.
- Factors influencing a child’s best interest might include: the child’s age and sex, the child and parents’ mental and physical health, the parents’ lifestyle, the parents’ ability to provide for the child, and the child’s preference.
- Safe Haven provisions
- All 50 states have enacted Safe Haven laws, or statutes allowing desperate birthmothers to relinquish their newborns legally and confidentially, rather than abandoning them or directly harming them.
- Putative fathers’ rights over the placing of their children for adoption
- A putative father is a man who is alleged to be the father of a child, but who was not married to the child's mother before the child’s birth and who has not established himself as the child’s father in a court proceeding.
- About half of the states have passed laws establishing putative father registries, which allow putative fathers to claim paternity, to receive notice of adoption proceedings, and to refuse consent to adoption placement.
