Let's Make a Brand New Start of it in Old New York: Using Mediation to Resolve Open Adoption Disputes

• Author: Christina M. Irrera
• DOI: http://doi.org/10.1111/fcre.12490
• Published date: 01 April 2020
• Date: 01 April 2020

STUDENT NOTES

LET’S MAKE A BRAND NEW START OF IT IN OLD NEW YORK:

USING MEDIATION TO RESOLVE OPEN ADOPTION DISPUTES

†

Christina M. Irrera

There is no general consensus of how to handle disputes arising from open adoption agreements. Some states have statutes

mandating mediation,but New York does not. This Note proposes that New York enact a statute that mandates adoptive and

birth parents use mediation for disputes arising from open adoption agreements. The proposed statute provides a comprehen-

sive approach to mediation by setting forth when mediation is appropriate and when it is not. The statute will also provide

when the child’s preference can be taken into consideration,and who will pay for mediation.

Key Points for the Family Court Community:

Only eleven states and the District of Columbia have statutes addressing the use of mediation in disputes arising from

open adoptions.

Of these eleven states, only seven states and the District of Columbia actually require the parties to mediate before

allowing them to ask the court to order a judgment.

Open adoptions are becoming more common, and each one varies on how much contact or visitation there will be

between the birth parents, or biological siblings, and the child.

Creating a statute for New York mandating mediation for these types of disputes will afford parties the opportunity

to create a modification that will work for both sides in a less adversarial setting.

In other areas of family law, mediation has been proved to be effective in creating durable agreements as well as

being cost effective for both parties.

Keywords: Adopted Parents; Best Interests of the Child; Biological Siblings; Birth Family; Birth Parents; Cooperative

Adoption; Mandated Mediation Statute; Mediation; New York; Open Adoption; Open Adoption Agreement.

I. INTRODUCTION

In 2017 there were 59,400 finalized adoptions in the Unites States.

1

This is an increase from

2013, where the amount of finalized adoptions was 50,800.

2

In 2008, a two-year survey looked at

100 domestic private agencies with infant adoption programs, which showed that only about five

percent of adoptions were closed, approximately fifty-five percent were open, and forty percent were

mediated.

3

A 2007 national survey of adoptive parents in the United States determined that when it

came to pre-adoption agreements regarding “openness,”about sixty-seven percent of privately

adopted children had this agreement, thirty-two percent of children adopted from foster care had

this agreement, but children adopted internationally rarely reported a pre-adoption agreement, so

there is no estimate of a percentage that have that agreement.

4

Within adoption “openness”refers to the level of knowledge that parties have about past and

present relationships, such as the adopted child and the birth family.

5

“Openness”also refers to the

Corresponding: cirrera1@pride.hofstra.edu

†

This Note will not address whether closed adoptions or semi-open adoptions can be modified after they are finalized in order

to allow for contact or visitation between the birth parents, or biological siblings, and the child.

FAMILY COURT REVIEW, Vol. 58 No. 2, April 2020 604–618

© 2020 Association of Family and Conciliation Courts