Why You Want an Attorney to Represent You in Your Adoption

It may seem self-serving for an attorney to be writing an article entitled “Why you need an attorney to represent you in your adoption”, but I have learned certain truths and principles over these past 32 years that I feel compelled to share with you. I hope you consider the following as I truly believe it will make adoption and the process less complex, less expensive, a better choice for women/expectant parents in crisis, decrease the numbers of children in foster care, decrease the numbers of abortion and restore broken generational lines through adoption!

Adoption is a legal process

It seems obvious, but it is amazing how many people begin a “legal process” and consult with everyone other than a lawyer! Every hurdle, obstacle and challenge you perceive, or may experience in adoption, are challenges we, as lawyers, deal with every day in adoption. It is what we do! I often say to my clients that I could probably do my own taxes, but I decided years ago that I would avoid that anxiety, time with audits, extra expenses and frustration by using a tax professional/CPA. There is the adage about performing brain surgery on yourself. As I mature and get wiser, I have learned to rely on professionals who specialize in the specific need I have. Whenever I have tried to solve problems without the necessary knowledge and experience to in fact solve them, I have always, and I mean always, ended up in a place I have regretted, spending more time and money than if I would have had the wisdom to hire the right person to begin with! We do not want you to have this experience with adoption! Simply put, adoption is a legal process, and you should have a lawyer who you trust walking you through the process with you, every step of the way.

The myth of your adoption being a “lawyer adoption” versus an “agency adoption”

Guess what? There is no such thing! There will be both a lawyer(s) and an agency involved in virtually every adoption! Lawyers and agencies are mutually dependent, not mutually exclusive. This is not always obvious to first time adoptive parent(s). It makes sense, the agency performs home studies on the adoptive family, meets with the expectant parent(s), sometimes takes their relinquishments or consents, and makes recommendations to the court regarding the adoption. But that is only part of the adoption process. The lawyer is going to be (should be) involved at some point regarding the “match” process (see below), Interstate compact, representing the adopting parents in initiating their adoption proceedings in court, expectant/birth parent or adoption agency representation, the Interstate compact process, Indian Child Welfare Act compliance, and finalization of the adoption in court. Therefore, if a lawyer is ultimately going to be involved, my best advice is you direct your adoption process from the outset by consulting with and/or hiring your lawyer from the beginning. Obviously, this will avoid unnecessary surprises and, more than that, avoid unnecessary anxiety and fear in your regarding your adoption! [1]

Being represented by a lawyer in your adoption will save you money

It is one of the biggest myths you will deal with in adoption, that lawyers are too expensive, or you can’t afford a lawyer on top of all your other adoption expenses! The truth is, you will save money if you begin the process with a lawyer who you trust, who is priced fairly, and who has a good reputation in the adoption community! Ask yourself this question when you deal with any person or professional involved in the adoption process: What do they stand to lose if they misguide me or misuse my hard-earned money? Lawyers stand to lose their license, which is their livelihood/everything! In other words, those who are most invested and have the most on the line will be those who strive the hardest to serve, guide and “represent” you and your specific interests! One of the very first questions you will ask your lawyer is “how much does the adoption process cost?” Our client’s biggest fears many times revolve around money. We have an ethical obligation as lawyers to address your needs and your fears. Therefore, one of our ethical “duties” therefore is to minimize costs in the process, not expand them. That’s our duty! In other words, your attorney will be your advocate to keep costs down. Most of our adoptive parent clients do not understand that when they first meet with us, but once it clicks with them, they feel protected and become appropriately reliant upon what their attorney is advising them to do in each step of the process!

Choose a lawyer with specific adoption knowledge and experience

I am a member of the Academy of Adoption and Assisted Reproduction Attorneys (www.adoptionart.org) a national organization of the most knowledgeable adoption and assisted reproduction attorneys in the nation. I am also a member of the Academy of California Adoption and Art Attorneys (www.ACAL.org). I cannot stress enough how important it is to hire a lawyer from these organizations!  In over 20 years as a member of theses organization, I have never personally had a bad experience with any lawyer from any state in the US! They have all met basic standards of knowledge and reputation in their communities in order to even apply to such organizations, and they are subject to disciplinary action if they receive complaints from any other member or their clients to that organization!  An experienced adoption lawyer’s knowledge has very practical implications for you, and therefore it is essential you consult with them as you begin your adoption process. At a minimum, they will guide you as follows:

• Describing the specific legal process in your state;

• Directing you to the best, least expensive, most effective agency to meet your specific needs (for example, in California if a client has a desire to privately adopt and then one day adopt through the foster care system, we will specifically direct them to a “full service agency” that can accomplish those goals as our clients build their family through adoption). I cannot tell you how many clients I have consulted with over the years that have spent time and money becoming home studied through an agency that could not ultimately help them with the type of adoption they were doing. That time, energy and expense could have been avoided by simply having a short consultation with a lawyer!;

• Describing what your state’s laws say regarding doing outreach for an expectant parent. There are limitations in various states regarding the use of certain types of “facilitators” and unless you consult with a lawyer initially you may not receive that advice from such facilitator. Again, I have met with many clients who have spent thousands of dollars with a facilitator only to find out they are illegal in their state!;

• Once you consult with a lawyer you are typically commencing an attorney-client relationship. Ethically, that is a huge obligation for the attorney. The benefit to you as in adopting parent is that you now have a relationship with a lawyer and an advocate who can immediately advise you once you believe you have found a “match”;

• Advising you as to when you have a “match”. A match is more than an introduction to an expectant mother/birth parent(s). A lawyer would more appropriately define a match as that amount of information that you need in order to be as informed and comfortable as possible moving forward and beginning to spend money. But you may not know what you do not know, so that legal analysis is best performed with you and your lawyer before you go all in. Basic issues in determining whether you are matched, include, but are not limited to:

  • The proper jurisdiction (state) or venue (county within your state) to finalize the adoption, which would benefit you;

  • Vetting your case for any issues related to fraud, duress, undue influence, notice, or any other factor that could threaten the finality of your adoption[2];

  • Expenses related to the adoption and whether they are legal or appropriate under your state’s law, or if you need a court to pre-approve them, or if they need to go through a licensed agency;

  • Issues related to the alleged birth father and termination of his rights if he does not consent to the adoption. Note, historically this has been the most dynamic variable issue in adoption;

  • Compliance with the Indian Child Welfare Act;

  • Whether because of the circumstances or past of the expectant parents, the child is at risk of the child being taken into foster care, and whether that will impact your ability to adopt that child[3];

  • The adequacy of your home study and need to update or supplement given a unique issue in your case;

  • The need, requirement and/or appropriateness of independent representation for the expectant mother;

  • The availability of adoption assistance benefits/subsidies you may be eligible for and how to structure the adoption to position you and your child for those benefits;

  • These are just to name a few![4]

Being guided by a lawyer in your adoption will create the best adoption possible:

At Familybuilding, APLC our end game has become the legacy we are able to create for the child. However, the ultimate judge and jury of the way we do adoption will be in the life of your adopted sons and daughters! How we manage the crisis that creates an adoption opportunity; how we treat the biological parents in that process; how we manage financial resources so those who are hurting, the biological parents, can receive the most resources, not adoption professionals; how we dispel myths and fears that separate the expectant and adoptive parents, sometimes leading to acrimony; how we discuss and put in place reasonable post adoption contact agreements that benefit all parties, especially the child, and; strive at every step of the process to do “best practices” in the adoption, will make every bit of a difference to you, your child through adoption and your family for years, decades and generations to come!

Conclusion

Your lawyer has the highest ethical obligation of any adoption professional you will work with and is obligated to analyze every single detail of your adoption. Your adoption, the finality of your adoption, the way it is handled and the ultimate impact it has on you, the expectant/birth parents, and especially your son or daughter. We have found a definite correlation between ethics, honesty, best practices and the costs of your adoption! The best adoptions usually cost the least, or if not the least, every cost and every procedure can be morally and legally justified. The worst adoptions don’t make sense financially and because of a shortcut(s) taken in the law, usually caused by fear and lack of knowledge, create a negative experience, which can create a negative legacy rather than a positive one in the child!

If you agree with these truths, or they at least make some sense to you, I encourage you to reach out to the organizations I have listed above, or get legal referrals from those you trust like Purl, and begin your adoption process with consulting with a lawyer. We wish you all the best in restoring generational lines and changing the world through adoption!

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Citations within the document:

[1] You’ve heard “knowledge is power”, we as lawyers believe knowledge also avoids unnecessary fears and anxiety in our clients. Ethically, we spend more time dealing with our client’s anxieties and fear, and we do that through constant consultation, encouragement, and knowledge of the process, principals, truths and the law. Trust me, there is no other person or entity, no matter how much knowledge and experience they have, there is nothing more empowering than your confidence and approach being rooted in your attorney’s zealous representation of you and your interests!  Zealous representation is what we are commanded by our State Bar and Code of Ethics to deliver to you as our clients. No one else in the adoption process has as much at stake in terms of their career, license or reputation than a lawyer.

[2] With the increase in adopting parents hiring Facilitators in adoption, costs of adoption have gone up, monies given to the expectant mother/parent(s) can be suspect, covering up of vital information in expectant parent’s background information (ex. Identity of the biological father), notice to parents, notice to an Indian Tribe, etc. are issues lawyers are focused on as they will have the most significant impact on our clients.

[3] My experience has proven approximately 35% of private/voluntary adoptions (where the biological parent(s) choose the home for their child, are at risk of going into foster care at birth because of on-going issues with the expectant/birth parents, or a prior Child Protective Services history regarding their other child(ren).

[4] We have a case conference every week with the lawyers at Familybuilding , APLC, and we are amazed the myriad of issues and nuances in the law related to adoption. We have quipped, we will never run out of issues to discuss, ponder and strategize about! The application of the law, statutory or case law, varies significantly with each case on its facts. There is no such thing as “understanding the law” as it reads from a statute, we must analyze it within the context of your case and your specific facts.