4 facts about post-adoption contact

Almost three years ago, I signed a “conditional surrender,” giving up parental rights of my oldest child, who was eventually adopted. The agreement stated that I would continue to be able to visit my daughter. The adoptive parent broke the agreement and I have not seen my daughter in almost three years. Now I regret not fighting to keep my two children together.

Here, Margaret Burt, an attorney with 37 years of experience in child welfare law, explores what rights parents have to keep contact with their children after adoption.

Q: Can a parent have visits after the termination of parental rights?

A: once a termination has happened, the court has no authority to order visitation. a parent can ask for visitation, and foster parents and the agency can talk about it, but there’s no ability for the judge to order it.

Q: If parents decide to sign a conditional surrender, what can they do to make sure that the visitation agreement is as strong as possible?

A: Be careful about the details. If the agreement says the birth mother is going to get three visits a year, what does that mean? Does that mean the adoptive parent gets to say your three visits are January 1, January 2, January 3? I bet the birth mother thought that meant one visit every four months. The order should say that.

Birth parents also need to make sure that they have a way to contact the lawyer that helped them after the case closes. so if it’s two years later and it’s not working, they can call and say, “you represented me on this agreement and I’m having a problem.” The lawyer may or may not represent that parent. The court ultimately decides if the parent is entitled to counsel. But at least the lawyer should listen and help get that parent back into court.

Q: What rights do parents have if they do go back to court?

A: The birth parent can tell the judge in what way the agreement has been broken. The judge will also hear arguments from the adoptive parent.

The judge doesn’t have to say, “well, this was the agreement and you absolutely have to do it.” Some courts have said that the circumstances have changed and it’s no longer in the child’s best interest to have contact. Other courts have ruled that the adoptive parent doesn’t have a good reason to not be abiding by the terms, and have ordered that the adoptive parent must obey the terms.

The judge also has the power to enforce visitation orders. This can include fines and incarceration for contempt if the adoptive parent refuses to obey the judge’s order.

Q: Connection between siblings has proven to be in the best interest of children. Are there laws that ensure that this connection is maintained after adoption?

A: In New York state, when parental rights are terminated, sibling rights are not terminated. The sibling can sue for ongoing contact. whether the judge orders that ongoing contact is going to have to do with whether it’s in the best interest of the children.

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