An independent adoption is the adoption
of a child without the need for utilizing the services
of a licensed child placement agency or the Department
of Children and Families. A home can be found for
the child by the birth parent or parents directly
or through the use of an intermediary. An intermediary
in the State of Florida is an attorney or physician
who is licensed or authorized to practice in the State
of Florida. However, no child may be placed directly
by a birth parent to an adoptive couple without the
use of an intermediary.
The adoptive parent or parents usually
employ an attorney to represent them. The birth parent
or parents may also wish to consult an attorney. It
is a third degree felony in the State of Florida for
anyone other than a licensed child placement agency,
an intermediary, or the Department of Children and
Families to place a child for adoption within the
State of Florida.
Only a licensed child placing agency
or the Department of Children and Families may place
a child born in Florida to an adoptive parent outside
of the State of Florida.
The identities of the parties involved
in adoption are normally kept confidential. However,
many times the birth parent or parents and the adoptive
couple agree to an "open adoption." Such
a procedure allows the adoptive couple and the birth
parent or parents to have direct contact and share
certain information. While open agreements are recognized
as a practical matter, open adoption agreements are
not enforceable.
If an intermediary is used, he or
she is required to file with the court prior to birth,
a statement regarding the terms of any placement,
whether or not there will be any financial reimbursements
to the birth parent or parents, whether the adoptive
couple has received a preliminary approval by a licensed
professional or agency, and whether the prospective
adoptive couple has a clear criminal and abuse registry
clearance. An interview with the birth parents is
required prior to placement. This interview must be
conducted by an agency or licensed professional.
The birth parent or parents are required
to submit their medical and personal histories. This
also includes any documentation regarding their present
or past marital status. The adoptive parent or parents
are also required to submit medical and personal histories
as well as personal references, marriage certificate
and divorce records, if applicable.
For a child to be available for adoption,
the consent of the birth mother must always be obtained.
It is also necessary to have a consent from the birth
father if the child was conceived while the birth
father was married to the birth mother, supported
her financially in a repetitive customary manner,
the father has acknowledged in writing he is the father
of the child, the child is his child by adoption,
or if paternity of the child was established in a
separate court proceeding. If the birth father does
not fit into any one of the above categories, then
his consent may not be required and may be excused
by the court. It is always the best practice however
to obtain the consent of the birth father to avoid
any discrepancy in any information which may have
been provided by the birth mother. When in doubt,
it is best practice to obtain from the court an order
waiving the father's consent by reason of abandonment
or other statutory criteria.The official consent form
for an adoption can only be signed by the birth parent
or parents after the child is born. Any consent signed
prior to the birth of the child is invalid. Any consent
signed by a birth parent becomes irrevocable when
signed and may not be set aside unless a court of
competent jurisdiction finds that the consent was
entered into under fraud or duress. In order for a
consent for adoption to be valid, the consent must
be signed and witnessed by two separate individuals
and notarized. The notary may also be a witness.In
the State of Florida, a consent given by a minor birth
parent is valid. However, care should be taken that
the minor birth parent has had a sufficient opportunity
to explore his or her decision. Counseling should
be offered in all cases but especially when the birth
parent is a minor.
If the child to be adopted is more
than 12 years of age, he or she must also consent
to the adoption.If the child to be adopted is six
months of age or older, and has been living with a
grandparent, then that grandparent must be given notice
of any pending adoption. Additionally, in the circumstances
where the child to be adopted has lived with a grandparent
for a period of six months, the grandparents as a
matter of law, must be given first priority to adopt
the child should they so desire. However, this does
not apply if the adoption is a result of the death
of the child's parent and a different preference is
stated in the parent's will.
Certain expenses are properly payable
by an adoptive couple to a birth parent. These expenses
include doctor, hospital, and prescription bills,
housing, food, clothing, and other ordinary and necessary
expenses. Any agreements regarding the payment of
such expenses should be in writing. Payments or promise
to pay the birth mother for the transfer of the child
is illegal. However, the payment of reasonable medical
and living expenses including counseling expenses
are legal. If the birth parent does not consent to
the adoption after the child's birth, any expenses
paid in advance may not be recoverable. All expenses,
including attorney's fees and intermediary fees paid
by the adoptive parent or parents must be reported
to the court for approval.
As long as the adoptive couple has
an approved home study by an agency or licensed professional,
the child can be placed directly into the home by
the intermediary upon release of the child from the
hospital and after the signing of the appropriate
consents by the birth parents. This process normally
occurs between two and four days following birth.
Once a placement is made into the home of the adoptive
parent or parents, a supervisory period of ninety
days is required under Florida law. During this time,
the agency or licensed professional has an opportunity
to monitor the child's care and progress in the home
of the adoptive parent or parents. A Petition for
Adoption can be filed at any time after the placement.
However, a Final Judgment of Adoption cannot be entered
until after the ninety day period has expired and
after the agency or professional has filed a final
recommendation approving the placement with the adoptive
parent or parents.
Once a Final Judgment of Adoption
has been entered, it cannot be set aside unless a
procedural defect or irregularity occurred and the
Final Judgment is appealed within one year of the
entry of the Final Judgment. An example of a procedural
defect would be a failure to give appropriate notice
to a birth father or grandparent.If you decide to
look into the possibility of an independent adoption,
you should consult an attorney who specializes in
adoption to make certain that you understand all aspects
of the adoption process. The birth parent or parents
have been known to change their minds even after the
consent for adoption has been given. Unnecessary court
battles have been fought over custody of a child being
adopted as well as over the financial loss sustained
by the adoptive parent or parents.
Michael R. Barnes
practices law in Key West, Florida. His comments are
provided as a pro bono community service and are not
offered as legal advice for a particular set of circumstances.
The law is continually changing. If you are concerned
that you may need a lawyer, you are encouraged to
contact one about your legal rights and responsibilities
and follow his or her advice for your individual situation.
