This article is written by Ishwita Mondal pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
Table of Contents
Introduction
Post Adoption Agreement is a contract between birth parents and adoptive families. It is commonly referred to as PACA. It allows communication between a child, his or her adoptive family, and members of the childbirth family or with the other has established relationship with. The purpose of this agreement is to ensure that there are rights and obligations from both parties. The main objective of this article is to discuss post-adoption agreement in detail, to look at the implementation of this article, how it is drafted and how it can help the parties to the contract i.e. between the birth family and adoptive family. This article tries to analyze the Post Adoption Agreement and how it can benefit the parties in it and the issues involved in it. Doctrinal method of study is being used to complete the research. This article can be useful because adopting a child became a common trend, if any parents are incapable of producing children then they opt for adoption, this also leaves a positive and good impact on society.
What is a Post Adoption Agreement?
A PACA is a written agreement between birth and adoptive parents that provides for and outlines the types and frequency of post-adoption contact between the adoptee and his or her birth family. PACAs are individualized; in each adoption, birth and adoptive parents can carve out their own desired post-adoption contact parameters. As one adoption attorney put it, it helps us to give children more of the connections that help them to feel known, loved, and anchored in their lives. PACAs are not custody agreements. We can not stress this enough. PACAs are not an attempt at cooperating between adoptive and birth parents. PACAs are means to maintain contact through photos, letters, or visits.
And agreement for post-adoption agreement or communication has become more prevalent in recent times due to several factors those are as follows:-
- Wider recognition of the birth parent to choose for their children.
- Many adopted children may have relationships with their birth relatives with whom ongoing contact may be beneficial.
- Birth parents who participate in selecting the adoptive family may have a wide range of adoptive parents’ choices and they can choose the adoptive family based upon their willingness.
- Communication with birth relatives with adoptive families is valuable because the adoptive family can have detailed information about the child.
Enforceability of Post-Adoption Agreement
When parties agree to adopt a child, they enter into a post-adoption agreement. Generally, it becomes an informal agreement based on trust. But sometimes the agreement is written down and becomes a formal contract. In most states, post-adoption agreements are not legally enforceable. Even if the parties enter into an agreement regarding adoption but still the contract can be broken at any time without legal consequences. When the agreement through an agency is broken, then the agency can reach out to others and request the contact. Some states also do allow legally binding post-adoption agreement that means if the contract is broken then, a judge can order the contract to be made. If the adoptive family refuses it even after the order, there are potential charges and fines. In special circumstances when the adoptive family feels that the openness is harmful to the child, they can appeal to the courts to have the contract annulled.
Process of adoption
A petition for adoption must be filed for a family court judge to review. The petition includes:-
- Basic information for the adoptive parents, the child, and the biological parents.
- A statement from adoptive parents stating that they are aware of their duties and obligations.
- Legal grounds or reason for termination of biological parents’ rights.
- The nature of the relationship between the adoptive parents and the child.
- A statement asserting that the child’s best interests are being met through adoption. Adoptive parents are served with a notice and the adoptive parents need to appear before the court to take an oath regarding their obligation and duties. If the judge finds it favors the child’s best interest then the judge can order for adoption.
Illustration
Mr. Dutta & Mrs. Dutta are the birth parents of Rahul. Mr. Sarkar & Mrs. Sarkar wants to adopt Rahul as their son. So, they can be called adoptive parents. For adoption to be successful both birth parents and adoptive parents need to enter into an agreement which can be called a Post-Adoption Agreement. The main purpose of this agreement is to protect the best interest of the child. If anyway the terms of the contract are violated then this agreement gets terminated.
How a Post-Adoption Agreement is drafted?
The Post-adoption agreement will depend upon the wants and preferences of both adoptive and birth parents and it covers certain legal bases. It is different from that of a custody agreement. When a birth parent places a child for adoption, they relinquish any and all parental rights. The contract is only to maintain the communication and it in no way means co-parenting. Post-adoption contact agreements set clear boundaries on contact. It removes the uncertainties for the parties about when the birth parent can contact adoptive parents, and for the birth parent when an update arrives. Parties should not include search terms, which they are not willing at the time of the agreement, to make a good faith effort to honor. If the parties know that they are able to honor any term of the contract, then they should not agree to it. There are several terms which need to be considered that protect all the parties, those are:-
- Identifying information:- In this clause parties need to agree to keep their current names, addresses, email addresses, and telephone numbers on file with the organization.
- Communication:- By this clause, the parties agree to maintain the communication with the child, like the parties in the contract should keep the agency updated all their details, when birth parents can meet with the child, sending pictures to the birth parents by the adoptive parents annually or as mentioned in the contract, receiving of letters etc.
- Visitation:- Once a person places their child for adoption, they essentially forfeit their parental rights to the child. There is no set rule in regards to post-adoption visitation rights. This means that whether the child’s birth parent is allowed to visit the child once they have been adopted, is up to the court to decide based on individual state adoption laws.
- Guardian for the child:- Through this clause adoptive parents need to nominate a guardian by their will and he needs to abide by the agreement, in the event that both adoptive parents die or become inappropriate.
- Invalidation:- This clause contains when a contract can be invalidated. like if birth parents assume an adversarial relationship with adoptive parents, if there is a felony from birth parents like they have not fully filled their duties like visitation then adoptive parents will no longer be obligated. it can also be invalidated if a child suffers mentally and physically due to some reason.
- Enforcement:- If any action is required to enforce any provision of this agreement, the prevailing party shall be entitled to recover from the other party, in addition to costs and disbursements, all reasonable attorney fees.
- Miscellaneous:- It contains details like when the agreement will be enforced, how alteration can be made etc. modification can only be made by writing by all the parties. If any part is unenforceable then the remaining part should be enforceable.
Sample draft
POST-ADOPTION AGREEMENT
This Agreement is regarding the adoption of Rahul(hereinafter referred to as ‘Child’) born on 27th May 2010(herein after referred to as ‘Effective Date’) is effective from the 12th June 2021.
BY AND BETWEEN
Mr. Gupta & Mrs.Gupta(hereinafter referred to as ‘Birth Parents’), Address:- Belpukur, Shyampur, Howrah: 711312, Email:- [email protected], Phone Number:- 9098345647.
AND
Mr.Sarkar & Mrs.Sarkar (hereinafter referred to as ‘Adoptive Parents’), Address:- Madanmohanpur, Kotalpur, Bankura:-711303, Email:- [email protected], Ph Number:-9765098732.
WHEREAS, the above-mentioned ‘Adoptive parents’ hereby consent to formally adopt Rahul, the child of above mentioned ‘Biological parents’.
AND WHEREAS, the above-mentioned ‘Biological parents’ hereby consent that Rahul to be formally adopted by the ‘Adoptive Parents’.
‘Adoptive Parents’ and ‘Birth Parents’ are collectively referred as ‘Parties’ and individually referred to as ‘Party’.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows:-
IDENTIFYING INFORMATION
The parties agree to keep their information or update the Child Care Foundation(‘Organization’) about their details like current names, addresses, and telephone numbers on a file of the organization.
COMMUNICATION
- Adoptive Parents agree to provide Birth Parents with letters and pictures of the child two times per year for the first 5 years and one time per year thereafter.
- The Child will be allowed to send and receive letters, pictures, and gifts from Birth Parents.
- Both parties agree to inform the agency(and each other) about significant events occurring in their lives(e.g., marriage, divorce, death, etc.).
VISITATION
- ‘Adoptive Parents’ agree to the following visitation between the ‘Biological parents’ and the Child twice visits during each year in the presence of “Adoptive parents”. The visits will occur at the house of adoptive parents. If the designated visitation site becomes unsuitable for visitation purposes, the parties shall choose a mutually convenient location for the visit.
- ‘Adoptive parents’ shall have the right to terminate any visits if either ‘Biological Parents’ is intoxicated, is under the influence of illegal drugs, or becomes verbally abusive or inappropriate.
GUARDIAN FOR CHILD
- Adoptive Parents agree to nominate a guardian in their wills, with the requirement that the guardian abides by the terms of this Agreement in the event that both Adoptive Parents die or become incapacitated.
INVALIDATION
This agreement shall be invalidated on the following grounds:-
- If either Birth Parent assumes an adversarial relationship with the Adoptive Parents.
- If either party are convicted under any serious misdemeanor or felony.
- If Birth Parents fail to exercise their visitation rights during any period of twelve consecutive months.
- If any parties are under the influence of alcohol or Birth Parents become intoxicated while visiting the child.
- If a contract gets invalidated then the adoptive parents shall have no obligation to fulfill the terms of this Agreement.
ENFORCEMENT
If any action is required to enforce any provision of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to costs and disbursements, all reasonable attorney fees.
IN WITNESS THEREOF, both parties have agreed with the terms and condition of this Agreement:-
Signed and executed by:-
Birth Parents:- 1. Mr. Gupta 2. Mrs. Gupta Adoptive Parents:- 1. Mr.Sarkar 2. Mrs. Sarkar
INFORMATION FOR BOTH PARTIES
- Both the parties have to acknowledge in writing that both the parties that they understand and agree that:-
- They entered into an agreement willingly and voluntarily.
- Parties are not being forced to enter into an agreement.
- Parties should not rely on any other information other than what is their agreement.
- The agreement is enforceable in probable court.
- The adoptive parent’s judgment regarding the child is in the child’s best interests.
2. This agreement does not limit parties from moving to another town, state, or country, but the agreement will remain in effect.
INFORMATION OF BIRTH PARENTS
- The parties may enter into an agreement, together or individually, they need to voluntarily relinquish their parental rights.
- Both parents need to acknowledge in writing that they understand that the termination of parental rights is final and cannot be undone.
- If the adoptive parents don’t meet the terms of the agreement, birth parents need to file a petition. But parents need to show that it suits their child’s interest.
- If any action is taken to enforce or change the agreement will not affect the termination of the parental right of adoption.
- If the child is not in adoptive parents’ custody then the agreement can not be enforced.
INFORMATION FOR ADOPTIVE PARENTS
- The option of entering into an agreement and the terms of any agreement should be discussed with the attorney.
- It should be considered that agreement serves the best interest of the child and the family.
- They can approach the court to change or amend the agreement if it suits the interest of the child.
Relevant laws
In India adoption is fully legal. People who are Hindu, Buddhist, Jaina, or Sikh can make a legal adoption under Hindu Adoption and Maintenance Act 1956. The religions like Muslims, Christian, and Parsis do not have separate personal laws for adoption, so they are governed by Guardian and Wards Act, 1980 for legal adoption. Juvenile Justice (Care and Protection of Children) Act, also regulates the matter related to adoption. The Central Adoption Resource Authority is controlled by the ministry of women and child development of India to control matters related to in-country and inter-country adoption.
Conclusion
Nowadays adoption has great relevance in today’s society. People or the Birth Parents give their right to the adoptive parents to look after the child and which should serve the child’s best interest. So, a post-adoption agreement is the need of the hour for those parents who want to adopt or who want to give attention. Its relevancy is also increasing day by day, so there should be a proper guideline that can guide the parties in a correct way without any hindrance. And the agreement of contact should not be broken by any parties as it can be considered as both moral and legal duty.
References
- https://adoption.org/open-adoption-agreements-legally-enforceable.
- https://www.jenniferfairfax.com/post-adoption-contact-agreements-in-open-adoptions.
- https://dawncoppock.com/paca-post-adoption-contact-agreements/.
- https://www.legalmatch.com/law-library/article/post-adoption-visitation-natural-parents.html.
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