Vol. 6, No. 5, Pg. 36. International Adoptions: Step by Step.

• Author: By H. Wayne Elliott

South Carolina Lawyer

1995.

Vol. 6, No. 5, Pg. 36.

International Adoptions: Step by Step

36International Adoptions: Step by StepBy H. Wayne ElliottEvery year Americans adopt between 7,000 and 10,000 foreign born children. A significant increase in the number of adoptions of foreign children began after World War II, when American soldiers were exposed to the dissolution of European families brought on by the war. Today many Americans see the adoption of foreign children as more advantageous than domestic adoptions for several reasons, including a greater availability of adoptable children, a perceived shortened waiting period, and the altruistic motive of giving a foreign born child a more secure future in the United States. Because international adoption is a viable option for many people who desire to adopt, it is important that lawyers understand the basics of the system. This article serves as a primer on international, sometimes called intercountry, adoptions.

The international adoption process can be complex, expensive and difficult. The adoption of a foreign born child involves consideration and application of four distinct legal systems. Each operates in its own sphere and at the same time might well influence the others. Federal law governs the admission of the child into the United States and the granting of citizenship to the child. The law of the country of the child's residence, usually called the state of origin or the sending state, will govern the child's adoptability and the child's emigration from that nation. The law of the adoptive parents' state of residence in the United States will govern the legal relationships between the parent and child growing out of the adoption. And international law may soon apply to the entire process.

A crucial consideration for any adoptive parent is the child's entry into the United States. The immigration status of a foreign child is governed by federal law. The immigration laws of the United States include special provisions that facilitate the entry into the United States of children adopted abroad or who are brought into the United States for adoption. The Immigration and Naturalization Service (INS) is charged with implementing these provisions. In doing so, INS examines both the child and the prospective adoptive parents. General information on the process can be obtained from the INS (800-755-0777, request Booklet M 249).

There are two ways for prospective adoptive parents to begin the search for a child. First, they might retain one of the international service agencies that work with similar foreign agencies to find and place children. Second, the parents might take a direct approach and retain the services of foreign doctors, lawyers or social workers who could help find a child. In either case there will be a substantial amount of pre-adoption investigation and paperwork. Some countries prefer that adoptions be handled by established international agencies; others prefer that local officials play a more prominent role.

If the prospective parents have already identified a particular child, the process can be initiated with the filing of a "Petition to Classify Or phan as an Immediate Relative," INS Form 1-600. This form is usually called an "Orphan Petition." The petition is available from and is filed with the INS office servicing the district in which the parents live. The petition requires information about the child and the adoptive parents. If

38the petition is approved, the child will be admitted to the United States without being put on the regular immigration waiting list. This means that the child will be admitted for permanent residence immediately and without regard to numerical quotas. The child must still meet the other requirements for admission, such as being free of a contagious disease.

As part of the petition approval process, the INS will verify that the would be parents are U.S. citizens and require that the parents demonstrate an ability to provide a suitable home for the child. Fingerprints are checked to determine if the parents have a criminal record. Suitability for parenthood is determined by a home study conducted by agencies authorized to perform the study by the parents' state of residence or, if the adoption occurred abroad, by an agency licensed in the United States. The study examines the parents' income, education, physical and mental condition, and general ability to successfully raise a child. If the would be parent is single, he or she must be at least 25 years old.

Even if the child has been legally adopted in a foreign court, the child must still be lawfully admitted into the United States.

The INS also investigates the child to ensure that he or she is adoptable and qualifies for admission into the United States. As the form's title implies, the child's admission into the United States turns on his or her "orphan" status. To qualify as an orphan, the child must be under 16 when the prospective parents file the petition with the INS and must meet the federal statute's definition of an orphan. A child is an "orphan because of the death, disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption." 8 U.S.C. § 1101(b)(1)(F). The statutory definition is implemented by INS regulations. 8 C.F.R. § 204.3 (1994). The regulations provide that, for the child to be "abandoned," the parents must actually surrender all parental rights and claims to the child. However, release of the child to a private entity, even the prospective adoptive parents, does not automatically constitute abandonment. The regulations state that a child who has been "given unconditionally" to an orphanage is considered to be abandoned, but provide no guidance on evaluating the unconditionality of giving a child to an orphanage.

Where a child's adoptability and subsequent admission into the United States as an immediate relative is based on his or her having been abandoned by one or both natural parents, the petitioner should thoroughly research the family history and be prepared to present the INS with proof of orphan status. If orphan status is based on the inability of the child's natural parents to provide "proper care," the standard for that care is that of the State of Origin, not the United States. In other words, the child must be impoverished by the living standards in the State of Origin.

One way to simplify the process is to effect the adoption in the courts of the State of Origin. When a foreign court permits an adoption, it is unlikely that the INS would determine that the child was not really an "orphan" and therefore could not be lawfully admitted into the United States. However, the INS does require that when the adoption takes place in a foreign country the adoptive parents (both if married) must have been present in that country and must have personally observed the child prior to or during the adoption proceedings. If one spouse was not present at the foreign adoption, the couple must demonstrate a willingness and ability to readopt the child in their state of residence. Generally, the INS will not delve deeply into the adoption proceedings if they meet the requirements of the foreign court and meet with general standards of fundamental fairness, including notice to the natural parents or guardians and provision of an opportunity to be heard. A certified adoption decree, conforming to the legal standards of that country, and a translation of the decree must be included with the 1-600 when the adoption has taken place abroad.

The law of the State of Origin will be determinative as to the child's adoptability in that country. Foreign courts will usually also require that the prospective parents' ability to take care of the child be demonstrated before the adoption process begins. The fact that the INS determined the parents to be suitable will not bind a foreign government. Foreign courts may also require a home study. Some countries (including most of South and Central America) require that adoption take place in their courts and that the parents, or one of the parents, personally appear before the court. The court may also require that the prospective parents appoint a government official or a local lawyer to answer any questions concerning the welfare of the child for up to five years after the adoption decree is issued. The child will not be permitted to leave the country before this appointment process is completed.

Other countries, including Korea, do not require the adoption to

39actually take place in their courts. In these countries the court will usually appoint the prospective parents or an international adoption agency as the child's guardian. The guardian will then bring the child to the United States for formal adoption. If the child is to be adopted in the United States, proof that any preadoption requirements imposed by the parent's state of residence have been met must accompany the petition. The intent is to avoid the situation in which the child is brought to the United States and only then is it discovered that the parents can not qualify under their state's law as adoptive parents. Evidence will also be required to prove that the child is lawfully in the custody of the prospective parents or the agency that will bring the child to the United...