Adoption

• Pages: 233-253
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

233

Chapter 11

ADOPTION

I. Historical Underpinnings

Adoption terminates a pre-existing parent-child relationship in

order to create a legal status of parent and child between two persons

who were previously unrelated. It is a unique status, different from

foster care placement (discussed earlier in the context of termination

of parental rights), which has a different purpose and is designed to

be temporary. Note too, that statutory adoption is different fro m

equitable adoption, also known as adoption by estoppel, which is

more of an equitable device and will be discussed later in this

chapter.

Adoption is unique because it is a creation of statute, rather

than common law. The la ws of the various states establish the legal

status of adoptive parents and these laws must be i nterpreted with

the care and precision associated with any statutory procedure. In

some instances, federal statutes preempt state laws, particularly

with reference to race, ethnicity, or international application. And

increasingly, federal subsidies promote adoptions so as to provide

minors with permanency versus extended foster care placements.

Modern statutes acknowledge that in today’s families one or

both spouses already have children, so the law evolved to allow

spouses to adopt the other’s child. This is know n as a stepparent

adoption when the legal parent of the child is married to the adopting

parent. Likewise, even without marr iage, states permit a partner to

adopt the child of the other partner without requiring the biological

parent to surrender parental rights. This is called second-parent

adoption. Thirty states and the District of Col umbia authorize such

adoptions.

1

When this occurs, it transforms the re lationship from a

stepparent-stepchild relationship (or one of legal s trangers if the

genetic parent and her pa rtner are not married) to one in which the

child has all the protections that adoption affords. This chapter

discusses how statutory law has changed to accommodate stepparent

and second-parent adoption.

Although adoption has ancient roots, the modern version in the

United States dates from the nineteenth century, and for England,

from the twentieth century. Early deve lopments in adoption law in

Egypt, Babylon, and Rome, focused on matters of political succession,

assuring continuation of family religious rites, or providing that a

1

JOAN H. HOLLINGER, ADOPTION LAW & PRACTICE, at appx. 1–A (2017).

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ADOPTION

Ch. 11

particular person could i nherit property or status. These ancient

illustrations typically applied to adults and benefitt ed the adoptive

parents far more than the persons being adopted. The evolution of

this adult-benefitting format was man ifested in some e arly civil law

countries. For example, the French Civil Code, during the nineteenth

century, permitted adult adoptions, but the adopter had to be at least

fifty years-old and have no legitimate child or descendant, and also

the adoptee must be an adult. The English had n o common law

adoption, but did enact an adoption statute in 1926, far later than

when American states enacted their own adoption statutes.

In the territories of Louisiana and Texas, early forms of adoption

based on French or Spanish law might have been in use, but the first

officially recognized adoption statutes originated in Massachusetts

in 1851, Texas in 1850, and Mississippi in 1846. The Civil Code of

New York of 1865, the Field Code, was one of the earliest proposed

statutory models, but it was never officially adopted. Nonetheless,

the provisions of the Field Code were enacted in several western

states. Unlike ancient adoptive practices, which sought to advance

the goals of the adoptive parents, the objective of the more recent

statutes was to benefit the children, many of whom had been

neglected by their birth parents and were in need of permanent

homes. This focus on the best interests of the minor child is wide ly

regarded as indigenous to the United State s. It remains the focus in

present-day adoption laws, now enacted in all of the states.

II. Adoption of Minors

In 1953, the National Conference of Commissioners on Uniform

State Laws promulgated a Uniform Adoption Act, and then a revised

Uniform Adoption Act in 1969, and finally a ne w Uniform Adoption

Act in 1994.

2

No j urisdictions adopted the uniform legislation in its

entirety, but the framework of the act influenced every state. The act

was instrumental in establishing the rules of interstate adoption,

agency adoption, evaluations, relinquishments, petitions, and

stepparent adoptions. Perhaps most of all, the act established the

language of adoption.

A. Adoption Options

Adoption of minors may take place through a l icensed state

agency, a licensed private agency or by way of an independent

adoption. Adoptions are ordinarily cl assified according to either the

method of placement, or whether there is a prior kinship relationship

between the parties, which is known as a relative or kin placement.

To have a valid adoption, there must be compliance w ith the state’s

2

NAT’L CONFERENCE OF COMM’S ON UNIF. STATE LAWS, UNIFORM ADOPTION

ACT (1994).