International Adoption: FAQs

From Megan Twohey’s exposé on re-homing adopted children, some helpful FAQs about international adoption. (Economics tells us that an overregulated market will drive people to unpoliced and dangerous fringe markets[1]. Megan’s exposé shows how international adoption is not immune from this principle. Megan exposes the fringe markets that allow parents pay far less than they would in the regulated system to adopt a child, and their devastating consequences.)

How does an American family adopt a child from abroad?

• Ninety countries belong to the Hague Adoption Convention, a set of safeguards for international adoptions. As a member, the United States requires parents to take 10 hours of training before adopting from another member country, such as China. (There’s no requirement when adopting from a non-Hague country, such as Ethiopia.) When Americans adopt children from U.S. state foster-care systems, more training is required: typically 30 hours.

• In about half the cases, involving kids from Hague countries, the adopting parents go through a federally accredited U.S. adoption agency that works with authorities in the foreign country. In the other half, involving non-Hague countries, families might go through an American adoption agency or work directly with facilitators in the child’s home country.

• Some international adoptions are approved in a foreign court; others in a local U.S. court. In foreign-court adoptions, no authority checks on the child in the new home. In U.S.-court cases, the family may face monitoring by a social worker for around six months.

• Some countries require periodic reports on the child’s well-being in their new homeland. Violators face little risk. A foreign country can cut off the agency involved, but has no recourse against the adoptive parents. An agency can sue a family for breach of contract. But that rarely happens.

What help is available for a family struggling with a troubled foreign adoptee?

• Not much. Some agencies provide post-adoption support to families, but they aren’t required to, and many don’t.

• Many U.S. states provide help to families who adopt troubled children from the state’s own foster system, such as counseling or temporary placement outside the home (“respite”). But this support usually isn’t available with internationally adopted kids.

• Private alternatives, such as residential treatment centers, are available, but they can cost thousands of dollars a month.

What if a family wants to send its adopted child back to the agency?

• If the child is from a Hague country, and the adoption is still pending approval in a U.S. court, federal law requires the agency to maintain legal custody of the child until it finds another family.

• If the adoption is final, the agency has no responsibility to help. Most don’t help parents offer a child for re-adoption.

• Parents can try to relinquish a child to a state’s child-welfare system. But this is difficult. In many states, these parents must be investigated for abuse and neglect. If the state takes the child, often parents must pay for the child’s care until he or she is re-adopted.

How can a family find a new home for their adopted child?

• A few U.S. adoption agencies assist with “re-homing.” They will help find a new family for the child, but don’t take legal custody or monitor the transfer. This is a gray zone: The agencies say they are simply facilitating private direct adoptions between two families and their lawyers.

• There are Internet forums, such as Yahoo groups and Facebook pages, that facilitate re-homing. This is a gray zone, too, and it is the focus of this series. Families place informal ads for children needing new homes; adults advertise a desire to take in a child. This activity may violate state laws that

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prohibit anyone except licensed child-placing agencies from facilitating an adoption or advertising a child’s availability. After connecting online, families can move forward with a re-adoption or a transfer of guardianship.

What kinds of re-homing are possible?

• The families can seek a formal re-adoption. This requires court approval – and affords the most protection for the child. The original adoptive family must

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terminate parental rights. The new family submits to a criminal background check and additional vetting by a social worker.

• The families can try to transfer guardianship in court. The original adoptive parents don’t terminate parental rights. The new guardians may have to undergo a background check.

• The families decide to transfer custody of the child in a less formal way, with no court involvement. The original adoptive family signs a piece of paper granting the new family power of attorney over the child for a period of time. Once notarized, this document allows the new family to enroll the child in school and secure government benefits for the child. In many cases, this is a gray zone: The transfer takes place out of the view of the child-welfare and court systems. The document isn’t officially recorded anywhere. This is a preferred method for families seeking a temporary, out-of-home placement for the child – often called “respite.” In other cases, it is used to transfer custody of a child for years at a time.

Are there laws against informal custody transfers?

• There’s a partial safeguard, and it’s weakly enforced. When a child is transferred across state lines for re-adoption or new guardianship, the families must secure the approval of authorities in both the sending and receiving state. Failure to do so violates the Interstate Compact on the Placement of Children – a legal agreement among the U.S. states. If authorities learn of an illegal transfer, they can remove the child from the new home. They also can take legal action against the adults involved, but this rarely happens.

What is the Interstate Compact on the Placement of Children, and how does it apply to custody transfers?

• The compact, often called the ICPC, is an agreement adopted as law by all 50 U.S. states, the District of Columbia and the U.S. Virgin Islands. Generally, the ICPC requires that authorities in both states be notified when custody of a child is transferred from one state to another. If authorities aren’t informed, the adults involved in the transfer have violated state law in both states. The catch: How – or even whether – authorities enforce the law differs by state. In some states, violations are considered crimes, typically misdemeanors. But other states aren’t explicit about how violators of the ICPC should be punished.

 

[1] For an application of this basic economic principle to adoption, see “The Regulation of the Market in Adoptions,” by Richard Posner, 67 B.U.L. Rev. 59 (1987)

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