Legal ??--Adoption/visitation rights, etc.

[Diana in OR]

I've put in a call to my attorney, but I think he's on Spring Break, so I'll ask here for some free, amateur legal advice :bigear: .

W/out going into specifics (I've done that previously), my general question is: If someone loses their parental rights (abuse, neglect, etc.) and a child is put up for adoption, is there any legal way a family member (aunt) who has decided not to become the adoptive parent can retain visitation rights with said child? If said aunt is the closest blood relative, and there are no grandparents, or other aunts and uncles does that help the situation?

I know nothing about this area and never thought I would need to. Maybe someone here who's adopted can enlighten me a little bit. I'm just trying to get my ducks in a row just in case.

[Sue G in PA]

We were in a similar situation that actually grieves me to this day. Short of it: My infant cousin put in foster care due to parental neglect, we tried to get custody and adopt, foster care system unwilling to even give us a chance (too many kids already...just crazy), parents lose parental rights and child is adopted RIGHT AWAY by foster mom...In this case, the foster care system was NOT on our side even though we were FAMILY. They impeded our efforts to intervene at every corner. Once the child is adopted, it is up to the adoptive parent/parents if they want to give family visitation. IF the child is still under guardianship of the state, you could talk to the social worker on the case and see if you can get visitation. We actually had visitation w/ my cousin for a year or so until was imminent that the parents would lose their rights and the foster mom would adopt. It was their agenda all along and we were simply being pacified so we wouldn't fight too hard. It worked:glare:

Talk to the social worker and let him/her know who you are and what you want. If the child is already adopted, see if you can find out by whom and then work something out with them. These situation are never "fun"...esp. when the state is involved. Good luck.

[Claire]

I'm not sure. Usually in a situation like that the adoption agency will try to work out an agreement between the relative and the adoptive parents. If the adoptive parents don't want the visitation, then I'm pretty sure the relative can file a petition with the court asking for visitation rights. The adoption would be put on hold until that case was settled. If the court grants visitation, that would be a condition of adoption. If the court does not grant visitation rights, there would be no strings attached to the child's adoption.

As I say, I'm not an expert in the field, but this is what I would think based on the adoption seminars I have attended......

Oh, after reading the other post, I realize what the situation is. I'm pretty sure you can file a petition with the court, but it definitely has to be done before the adoption is finalized. It's probably important to do it sooner rather than later, as the court would be less inclined to hold up an adoption for a late filing.

[Momto5]

You definitely need to speak to your attorney. Adoptions are governed by state law (unless a Native American child is involved) so the answer will depend upon your state's statutes. If your attorney is not available, consider speaking to another attorney in the office. You would hate to miss a statute of limitations because you waited for you attorney to return from vacation.

[strider]

BUT you are not likely to win such a concession.

The courts generally do not grant visitation rights to any non-parent. Grandparents and other relatives have tried, and the courts have almost universally held the view that the legal parents have full rights to determine who has visitation, not the courts.

It is my opinion that your best option is to get cozy with the adoptive family and tell them of your desires. They will naturally have some concerns about their child's exposure to the crazy/abusive birth mother--you will want to be proactive in allaying those fears. Prior to the adoption they will also have significant fears about YOU wanting to adopt their child. If you are sure that you do NOT want to adopt, you might consider telling them so plainly.

Adoptive children crave knowledge of their birth family--you might tell the adoptive parents that you want to be that link for this child.

I remember former posts from you on this--I would be interested in an update if you are able to give one. I totally understand if you are not able to do so. You can pm me (or not).

[Jenny in Florida]

Don't ask me how I know, because it's a long and miserable story that will only depress me to discuss in detail. And I want to make very clear that I am not a lawyer or professional with any credentials to speak to this issue. Also, my knowledge is now a few years out of date.

However, I can tell you that the laws on this vary widely from state to state. Here in Florida, it's unconstitutional for anyone other than the child's legal parents--be they by birth or adoption--to be granted visitation rights. But that's only because we have a clause in our state constitution that guarantees stronger rights in this regard than the federal one.

In other states--Wisconsin, Ohio, New Jersey and possible Missouri are the ones I can think of off the top of my head--the right to sue for visitation is much broader. In 2000, the US Supreme Court struck down an overly broad statute in Washington state that allowed "any person at any time" who could prove a long-standing and close relationship with a child to sue for visitation. However, all the Court really did in that case was to hand most of the authority back to states to set specific limits.

I don't know much about what role an adoption would play in this, except that I do remember hearing or reading at some point in my research several years ago (before the US Supreme Court ruling) that third-party visitations ordered before an adoption could survive even afterward.

So, the advice you've been given elsewhere--consult a lawyer knowledgable about family law--is absolutely the best you're going to get.

Good luck.

--Jenny

[Ferdie]

We have adopted three foster children and my understanding is that if a child becomes a ward of the state and is adopted through the state system, then the adoption automatically becomes a "closed" adoption. With a closed adoption there are no visitation rights and not even any requirement for the adopting family to stay in touch with birth relatives.

If the adoption is a private adoption between a parent and adopting parent, then the adoption agreement could call for an "open" adoption arrangement and, in certain states, the terms of communications or visitations would be listed in the agreement.

I totally agree with Strider, your best bet is to become friendly with the adopting family. All of our adoptions are closed yet we are in touch with one birth mom and a paternal grandparent, including periodic visits.

[Laurel T.]

I know absolutely nothing about this area of law and would not try to give advise, but I wanted to let you know that my heart just aches for you. I cannot imagine what you must be going through.

Laurel T.

[Ottakee]

in Michigan, the adoptive parents have all of the say in this matter if the adoption is finalized.

We adopted 3 kids and have full say over this. My son does see his birth siblings (5 of them), some aunts and uncles, etc. Contact in this case is good and healthy. My girls have no contact as we dont' know of any other birth relatives for them---well, they have 6 siblings but we can't find them even though we are trying.

I agree with trying to become good friends with the adoptive family and going that way.

[Diana in OR]

in Michigan, the adoptive parents have all of the say in this matter if the adoption is finalized.

We adopted 3 kids and have full say over this. My son does see his birth siblings (5 of them), some aunts and uncles, etc. Contact in this case is good and healthy. My girls have no contact as we dont' know of any other birth relatives for them---well, they have 6 siblings but we can't find them even though we are trying.

I agree with trying to become good friends with the adoptive family and going that way.

Do you have any sort of legal arrangement for this? I ask b/c I'm afraid if I don't have legal protection, the adoptive family (still hypothetical at this point) could decide after time they don't want me around and deny my requests for visits.

[Jenstet]

Not the same thing but, I have guardianship over my niece. She has not been adopted by us but I have full say over when and where she gets to see her biological mother (my sister) and any other relatives and that is just guardianship. It seems to me in NH that they are on the side of the people adopting or have guardianship as far as visitation goes.

Sorry you have to go through this.

[Ottakee]

No, nothing in writing. It is totally up to us. I am not sure if they would have petitioned the court before the adoption if that would have mattered or not.

I would talk to the social worker/adoption worker and express your interest.

Do you have any sort of legal arrangement for this? I ask b/c I'm afraid if I don't have legal protection, the adoptive family (still hypothetical at this point) could decide after time they don't want me around and deny my requests for visits.