Open vs. Closed Adoptions

Open Or Closed Adoption

What Is An Open Adoption?

It is a lot easier to describe a “closed” adoption so I’ll start there. Generally, a “closed” adoption is where the adoptive parents and birth parents have no contact before or after the adoption occurs, and know little about each other. They have no identifying information about each other and no means of contacting each other without the assistance of a third party.

An “open” adoption, or “openness” in an adoption is a matter of degree. There are many possible arrangements that take an adoption out of the “closed” category. Here are a few examples:

  1. Adoptive and birth parents may talk to each other before the birth of a child.
  2. They may meet each other once or twice, on a “first name only” basis.
  3. They may exchange letters and photographs.
  4. They may arrange to exchange pictures and progress reports after the birth of the child.
  5. They may arrange for the birth mother to visit the child after placement of the child or finalization of the adoption.

This list is limited only by the imagination of the people involved. Any particular adoption may have one or more aspects of openness.

As you can see, there is no single definition of an “open” adoption. It’s a question of the extent to which the people involved have agreed to have contact with one another.

Who Decides Whether The Adoption Is To Be Open And How Open?

In an independent adoption in Washington State, the openness of the adoption depends on what the birth parents or the adoptive parents want and can agree to do. It is a subject best discussed early in the adoption planning phase.

Initially, some people are apprehensive about openness. Often the parties are not in complete agreement on the subject at first. It is an important subject, and both adoptive parents and birth parents should be willing to discuss the subject and give genuine consideration to each other’s point of view. It is helpful to discuss the subject with an adoption social worker or adoption attorney to get a broader perspective on the subject and to get additional ideas as to how to work constructively toward a mutually beneficial arrangement.

If people spend time considering various possibilities, they usually are able to reach an agreement. Obviously, no one should allow himself or herself to be forced into an open adoption agreement with which he or she is not completely comfortable.

How Are These Agreements Enforced?

Before 1990, open adoption agreements were based solely on trust between the parties. They were not legally enforceable.

In 1990, the Washington State Legislature passed a statute providing a method for making the agreements enforceable. If all requirements are met, the agreements are set forth in writing and made an order of the Court.

There are several requirements. Care should be taken to ensure that they are met so the agreement will be valid and enforceable. One requirement is that the Court finds the agreement to be in the best interest of the child adoptee.

How Is An Open Adoption Agreement Enforced?

The failure to comply with a Court-ordered adoption agreement does not result in the adoption being set aside or a consent to adoption being revoked. If one party believes the other party is not following the agreement, the complaining party can ask the Court for an order of specific performance. This is an order of the Court commanding the other party to comply with the terms of agreement, under penalty of civil contempt. The complaining party may also be awarded attorney’s fees.

Can These Agreements Be Modified Later?

It is possible to modify Court-ordered adoption agreements, but only under certain circumstances. The law provides that “the Court shall not modify an agreed order under this section unless it finds that the modification is necessary to serve the best interests of the child adoptee, and that: (a) the modification is agreed to by the adoptive parent and the birth parent or parents; or (b) exceptional circumstances have arisen since the agreed order was entered that justify modification of the order.”

Clearly, when people enter into such an agreement, it should be with the expectation that it will not be modified.

Who Benefits From Open Adoption Agreements?

Most people quickly conclude that Court-approved open adoption agreements are beneficial to the birth parents. The Court order makes the agreement legally enforceable.

However, Court approved agreements provide a very real benefit for adoptive parents also. Many of the older agreements were verbal. Over the months and years, adoptive parents and birth parents respective recollections of what had been promised might differ. This could be a source of subsequent disagreement, controversy, and much unpleasantness.

Court-approved open adoption agreements must be in writing. If carefully drafted there will be no later dispute about what is required of each party. It will be there in black and white, not subject to the distorting effect of time on peoples’ memories.

Is The Open Adoption Agreement For Us? Where Can We Get More Information?

Before reaching a decision on the openness of your adoption, discuss it thoroughly with your adoption social worker and attorney. Don’t rely on rumors or what you may have seen on television. Get the facts. Find competent professionals and ask questions.

If you want more information on open adoption or any aspect of adoption, you can call me, Albert G. Lirhus at (206) 728-5858. You will not be charged for the initial consultation.

I hope the information contained in this document will help you. These are, of course, general answers to general questions. There are technical requirements that openness agreements must meet. For answers to specific questions, you should contact an experienced adoption attorney or other adoption professional to be certain you are getting the correct answers to questions based on your particular circumstances. Once again, if you have any questions or want any additional information, feel free to call me.

GOOD LUCK!

ALBERT G. LIRHUS