The Psychological and Emotional Ties That Bind Biological and Adoptive Families: Whether Court-Ordered Postadoption Contact Is in an Adopted Child's Best Interest

• Author: Cynthia R. Mabry
• Pages: 285-326

THE PSYCHOLOGICAL AND EMOTIONAL TIES THAT

BIND BIOLOGICAL AND ADOPTIVE FAMILIES:

WHETHER COURT-ORDERED POSTADOPTION

CONTACT IS IN AN ADOPTED CHILD’S BEST INTEREST

CYNTHIA R. MABRY*

I. INTRODUCTION

When an adoption involves postadoption contact, “[t]he

child . . . continues to have a post-adoption relationship with his or her

biological family.”1 An adoption with postadoption contact also is known

as open adoption, postadoption visitation, adoption with contact, and

cooperative adoption.2 A continuum of openness is used frequently to

describe the level of contact that may be involved. The spectrum ranges

from confidential to mediated contact to fully open contact.3 Confidential

contact means that there is no contact and the child’s adoption records are

sealed.4 There is no exchange of information after the adoption is

Copyright © 2014, Cynthia R. Mabry.

*Professor of Law, Howard Universit y School of Law; LL.M., New York University

School of Law; J.D., Howard University School of Law. I appreciate research support from

Interim Dean Okianer Christian Dark and my research assistant, Ms. Durriyah Rose (Class

of 2014). I also appreciate feed back from attorneys and adoptive parents that I received

when I discussed this topic at the Ninth Annual Wells Conference on Adoption Law at

Capital University Law School.

1 A HANDBOOK OF FAMILY LAW TERMS 27 (Bryan A. Garner & Cynde L. Horne

eds., 2001); see also Lucy S. McGough & Annette Peltier-Falahahwazi, Secrets and Lies:

A Model Statute for Cooperative Adoption, 60 LA. L. REV. 13, 43 (1999) (defining open

adoption and the parties’ expectations).

2 See McGough & Peltier-Falahahwazi, supra note 1, at 43; Frequently Asked Questions

About Adoption by Foster Parents, ADOPTION CHILD TIME 1, http://adoptionin

childtime.org/printpdf/98 (last visited Mar. 10, 2014) (stating that the biological mother

may agree to a cooperative adoption if the state allows for postadoption visitation);

Postadoption Contact Agreements Between Birth and Adoptive Families, ADOPTION.COM,

http://laws.adoption.com/statutes/postadoption-contact-agreements-between-birth-and-adop

tive-families.html (last visited Mar. 10, 2014) (noting that adoption with contact is

permissible when it is in the best interests of the child).

3 CHILD WELFARE INFO. GATEWAY, U.S. DEP’T OF HEALTH & HUMAN SERVS., OPENNESS

IN ADOPTION: BUILDING RELATIONSHIPS BETWEEN ADOPTIVE AND BIRTH FAMIL IES 2 (Jan.

2013), https://www.childwelfare.gov/pubs/f_openadopt.pdf [hereinafter OPENNESS IN

ADOPTION].

4 Id.

286 CAPITAL UNIVERSITY LAW REVIEW [42:285

finalized.5 Mediated contact means that the parties have indirect

communication through a third party, such as a caseworker or attorney.6

Fully open contact means the parties exchange identifying information and

it usually involves face-to-face visits.7 With private domestic adoptions,

69% involve some degree of openness.8 Public adoptions involve some

degree of openness in 39% of cases.9 Comparatively, only 6% of

intercountry adoptions involve openness.10

Contact falls within two major categories: direct and indirect

communication or access. Indirect contact is conducted through an

intermediary.11 Indirect contact involves exchanges of information, which

allows all parties to maintain their privacy.12 The information may be

transmitted through letters, cards, photographs, gifts, written updates, or

any combination of these methods.13 Direct communication involves

personal contact between a birth relative and the child or a member of the

adoptive family.14 It may consist of personal visits with disclosure of all

participants’ identities, telephone calls, electronic messages, or video

calling (e.g., Skype).15 It also may consist of anonymous visits that allow a

birth relative and the adoptive family member to have in-person visits

without disclosing their identities.16

This Article discusses the policies underlying contact,17 who seeks

contact,18 the content of court orders,19 and circumstances under which a

5 Id.

6 Id.

7 Id. (distinguishing the levels of openness).

8 Open Adoptions, ADOPTION.COM, http://library.adoption.com/articles/adoption-statistic

s-open-adoptions.html (last visited Mar. 10, 2014).

9 SHARON VANDIVERE ET AL., U.S. DEP’T OF HEALTH & HUMAN SER VS., ADOPTION USA:

A CHARTBOOK BASED ON THE 2007 NATIO NAL SURVEY OF ADOPTIVE PAREN TS 45,

http://aspe.hhs.gov/hsp/09/NSAP /chartbook/index.pdf (last updated 2009).

10 Id.; see also OPENNESS IN ADOPTION, supra note 3, at 11 (identifying challenges for

using social media to connect adoptees and thei r family members in other countries).

11 OPENNESS IN ADOPTION, supra note 3, at 2.

12 Id.

13 Id.

14 Id.

15 Id.

16 CHILD WELFARE INFO. GATEWAY, U.S. DEP’T OF HEALTH & HUMAN SERVS., OPEN

ADOPTION: COULD OPEN ADOPTION BE THE BEST CHO ICE FOR YOU AND YOUR BABY? 3,

https://www.childwelfare.gov/pubs/openadoption.pdf (last visited Mar. 10, 2014)

[hereinafter OPEN ADOPTION].

17 See infra Part II.

2014] POSTADOPTION CONTACT AND BEST INTEREST 287

court is likely to grant or deny contact.20 This Article concludes that more

states and courts should adopt laws and procedures to execute and

implement a child-centered approach for providing postadoption

contact21—that is, when contact is in the child’s best interests, the court

may order postadoption contact even over the adoptive parent’s objection

when it is necessary to a child’s emotional health.22 On the other hand, as

the court balances the interests of all interested parties, mediation or other

alternatives may be utilized to protect the adoptive parent’s parental rights

and autonomy.23 A model statute is offered as an example of a statute that

would comprehensively address relevant issues.24

II. PURPOSE OF COURT-ORDERED CONTACT

The Massachusetts Supreme Judicial Court held that postadoption

contact is not designed to benefit biological parents.25 Rather, the purpose

is to “to assist the child as [the child] negotiates, often at a very young age,

the tortuous path from one family to another.”26 The court will not issue an

order unless the child’s interests would best be served by postadoption

contact.27 The order offers a sense of security to the child about the child’s

ability “to maintain contact and a relationship with a person who has been

shown to be critical” to the child’s development and emotional health.28

The order for postadoption contact also helps to assure the child that the

court will honor and protect some of the child’s previously established

18 See infra Part IV.

19 See infra Parts IV–V.

20 See infra Parts VI–VII.

21 See infra Part X.

22 See, e.g., Monschein v. LaLonde, 701 N.E.2d 1275, 1281 (Ind. Ct. App. 1998)

(granting grandparent contact over the adoptive stepparent’s objection); In re D.C., 4 A.3d

1004, 1016 (N.J. 2010) (ruling that a foster parent’s objection and disinterest in

involvement with sibling contact is not a relevant factor); People ex re l. Sibley v. Sheppard,

429 N.E.2d 1049, 1052 (N.Y. 1981) (“[U]nder certain limited circumstances, grandparents

should have continuing contacts with the child’s development if it is in the child’s best

interest.”).

23 See infra Part X.

24 See infra Part X.

25 Adoption of Vito, 728 N.E.2d 292, 304 (Mass. 2000).

26 Id.

27 See Adoption of Rico, 905 N.E.2d 552, 557 (Mass. 2009).

28 Id.