When it comes to openness in adoption, it’s more common today than ever before. In fact, 95 percent of adoptions completed today are either open or mediated, meaning there is some sort of communication between the birth parents and adoptive parents during and after the adoption process.
However, even though open adoption is common, you may have some reservations about it as a prospective birth or adoptive parent. You may worry about whether the other party to the open adoption will keep their promise for postadoption contact. One of the questions in your mind might be: “Can I protect my open adoption by making it legally binding?”
Pennsylvania is one of the few states that actually allows for a postadoption contact agreement to be made legally enforceable. However, because the laws regarding this legal enforceability can be complicated, you will need the legal counsel of experienced professionals like Bierly & Rabuck to make sure your agreement is completed correctly. Any information presented in this article may help you better understand the legalities of enforceable contact agreements, but it should not be taken as legal advice — you can only get that by contacting an experienced attorney.
That said, here are some things you need to know about legally binding postadoption contact agreements in Pennsylvania:
- Who can be a part of them: The child’s prospective adoption parent and any birth relative of the child being adopted can be involved in these agreements.
- The requirements for a postadoption communication contract: A court must approve the contact agreement, making sure it:
- Is in the best interest of the child being adopted
- Recognizes both parties’ interests and desires for ongoing communication or contact
- Is appropriate, given the role of each of the parties in the child’s life
- How to make a legally binding postadoption communication contract: First, both parties to the agreement must enter into it knowingly and voluntarily. That’s why it’s so important that you consult with a legal professional before moving forward with any kind of legal agreement for open adoption.
Just writing a postadoption communication contract does not make it legally binding; it must be presented before the court for approval on or before the date any adoption decree is issued. Usually, this can be done during the adoption finalization. However, because a birth mother is not normally present at this finalization, it’s important that she understands this step of the process — and has her own lawyer representing her in court at this time.
Once the court approves the contact agreement, it will become legally enforceable.
- How to enforce the agreement if one of the parties breaks their contact: If you want to enforce a contact agreement you believe has been broken, you must file a movement in the court that finalized the adoption. You cannot request monetary damages or modification of the agreement; you are only enforcing specific performance by a member of the party. You’ll need to have an experienced attorney to represent you in this situation.
It’s important to remember that even if a contact agreement is broken, an adoption will remain valid.
- How an agreement can be terminated or modified: The only one who can modify the agreement (for example, increasing or decreasing contact) is the adoptive parent or the child, if they’re over 12 years of age. Any modification made must be deemed to be in the best interest of the child.
The birth parent, the adoptive parent or a child over the age of 12 may terminate the contact agreement as long as the termination is in the best interest of the child at the center of the adoption.
Clearly, the legal enforceability of a postadoption contact agreement can be complicated. If you’re interested in pursuing these legal steps, you can contact the law professionals at Bierly & Rabuck by calling 814-237-7900 or submitting our online form.
Remember, while open adoption will likely come with challenges, it’s important to keep up your honest communication, even if your contact agreement is not legally enforceable. This postadoption contact will be beneficial to all involved, especially to the adopted child at the center of the agreement.
Finally, be reassured knowing that, in our experience, the vast majority of prospective birth and adoptive parents who choose open adoption do so with the full intention of maintaining their postadoption contact in the best interest of the child involved. It may be difficult at times — but it’s all worth it in the end.