Adoption

In the ever-changing legal landscape of post marriage-equality, NicholsonPham is counseling our lesbian clients to do a stepparent adoption (or “confirmatory” adoption) of their children, born to married mothers, EVEN IF YOUR NAME IS ALREADY ON THE BIRTH CERTIFICATE

Birth certificates are not the same as legal orders of adoption/parentage:

• A birth certificate is a document issued through an administrative process and is not a court order.
• A birth certificate is based on relationship between the spouses only and not the relationship between parent and child.
• Parentage based solely on having a name on a birth certificate can be challenged in a divorce – and there are several cases out there where that has happened.
• Parentage based solely on having a name on a birth certificate might not be recognized by all judges/courts.
• A court in another state is not compelled to recognize parentage based on a birth certificate; but such a court is compelled to recognize an adoption decree based on the full faith and credit clause of the US Constitution.
• A birth certificate without the name of a sperm donor does not effectively terminate his rights; that can only be done through a termination of rights proceeding or by doing a stepparent adoption.

Parentage based solely on have a name on a birth certificate may notbe sufficient for some inheritance purposes, for social security benefits for a minor, and possibly for claiming a child as a dependent under the tax code.

In North Carolina, as in many states, the process of adoption is complicated and can be lengthy. Having an experienced attorney to guide you through the process is imperative to ensure that the adoption is granted and is final. The lawyers at NicholsonPham has successfully handled hundreds of adoptions - and Sharon Thompson, Of Counsel to our firm, was invited to become a member of the   American Academy of Adoption Attorneys, a national organization of approximately only 340 attorneys who are experts in the complexities of state adoption laws, as well as interstate and international adoption laws and regulations.

To adopt a minor child, you’ll need some or all of the following things:

1. The consent of the minor child’s birth and/or legal mother
2. The consent of the minor child’s birth and/or legal father
3. A preplacement assessment or “home study” that shows that your family is appropriate to adopt a child
4. Information about the biological mother and father of the child
5. A postplacement assessment or “report to the court” that shows that the child is doing well in your home and that the adoption is in the “best interest” of the child.

Family members can adopt each other, although you still may have to have the consent of the minor child’s birth/legal parents. Family members that adopt each other might not be required to have a home study or report to court. This can save hundreds of dollars. A consultation with NicholsonPham can help you determine what requirements will be waived for your family adoption.

These cases can be challenging. If the child’s parent has abandoned the child, it may be possible to terminate their parental rights. Or, if they can’t be located to get their consent, we may be able to publish a notice in the local newspaper. Either way, the court is going to want to know where the child’s birth/legal parents are. Our lawyers work with the facts of your particular case to determine the best way to move forward.

There are many agencies and websites that can help prospective parents prepare for an adoption and find children that might be available for adoption.  One good resource is www.adoptivefamilies.com.

No. Due to the ethical rules governing attorneys, as well North Carolina law, attorneys in this state are not allowed to assist clients with finding and placing children for adoption.  Only licensed agencies can do that.

It depends. Sometimes, the consent of a birth father isn’t required. However, that is a determination which is made by the Clerk of Court or a judge.  In other situations, it may be necessary to terminate the Parental Rights of a birth/legal parent. NicholsonPham has experience in these type of District Court proceedings and we can advise you whether a TPR petition will be necessary before you can adopt a child.

It depends. Fees for adoptions can be divided in four categories:

• Fees for the attorney who files the adoption. This fee can vary, depending on the complexity of the case. When you come in to NicholsonPham for a consultation, we’ll discuss the facts of your particular case and quote you a fee for legal services.
• A fee to the court for the filing and any additional documents, such as a criminal background check. The court currently charges $120 for an adoption filing. Background checks can run anywhere from $25 to $100, depending on how quickly you want them done.
• A fee to the agency that performs the preplacement assessment and report to the court. These fees also vary, depending on the agency, and can run anywhere from $300 - $2000. Private agencies will typically charge more than the local Department of Social Services.
• Expenses for the birth and/or legal parents. We also recommend that there be an attorney to represent the birth and/or legal parents of the child so that they understand the process and sign the necessary documents properly.

Your spouse may be able to adopt your child.  If there is another legal parent to the child, that person must consent to an adoption by your spouse or their rights must be terminated before your spouse can adopt.  Stepparent adoptions are common in North Carolina. In these types of adoptions, you will not need a preplacement assessment or “home study” but you may still be required to file  a postplacement report with the court.

Stepparent adoptions are highly recommended for lesbian couples, where one wife gave birth to the child. That stepparent adoption will give full, legal status to the second mother as a legal parent.

Interstate Compact for the Placement of Children (ICPC) is the law which requires that a child who is born in a state other than the state you reside in becomes eligible or “placeable” for adoption. Each state has an ICPC office and prior to the adoption of any child that is subject to the Compact, you will have to “clear” ICPC in both states.  For example, if a child is born in Texas but you live in North Carolina and want to adopt here, then you will need an attorney who is very familiar with the ICPC adoption rules in order to bring the child to North Carolina for adoption.

Yes, unless you adopt your stepchild. Adoptions of children, except stepparent adoptions, may be eligible for a federal tax credit under the current rules. This tax credit can help save you thousands of dollars. NicholsonPham always recommends that you speak with a tax advisor to determine your eligibility.

If you are adopting a child, we recommend that you ask the agency and/or the birth parents whether anyone has applied for a social security number already. If your child doesn’t already have a social security number, then you can request one while the adoption is pending. The Internal Revenue Service offers an ATIN – an Adoption Taxpayer Identification Number which serves as a temporary ID number so that you can claim the child as your dependent or claim the child care credit. This number is only good for two years. Once the adoption is finalized, you can take a certified copy of the adoption decree to your local Social Security office and request a social security number, if your child doesn’t already have one. Or, you can ask the Social Security office to issue a new social security number.

Adoptions in North Carolina are confidential and not a public record. Our adoption laws do permit the release of certain non-identifying information and if information is given to a court or adoption agency that may affect the health of an adoptee or the adoptee’s children, a reasonable effort may be made to contact and forward such information to an adult adoptee or the adoptee’s adoptive parents.  Our laws prohibit the release of identifying information. However, an adoptee can file a legal proceeding to try and obtain a court order to open an adoption file and find out any identifying or medical information. These types of proceedings are rare and are only done if you can prove to the Court that there’s a very good reason you need to know this information. Unfortunately, North Carolina does not presently have a registry system whereby birth parents and adoptees can be informed if someone is searching for them.