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Adoption refers to the act where an adult formally becomes the guardian of a child and incurs the rights and obligations of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and terminates any legal rights then in existence with the natural parents.

Although adoptions have historically fallen within the sphere of state authority, Congress has used its spending power to garner some influence over state adoption programs. Under this program, Congress grants money to the states to carry out their programs if they abide by certain Congressional mandates.

Fundamental Right:

In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme Court held that the natural parent’s right to have custody of their children is a fundamental right.  

Types of Adoptions:

While certain jurisdictions only permit one of the two types of adoptions, other jurisdictions recognize two types of adoptions – open and closed adoptions.

Most cases in which parental rights are terminated occur because of a consensual forfeiture of those rights by parents. Generally, a parent cannot revoke a consensual forfeiture.

Open Adoption:

An open adoption permits the birth mother to select her child’s adoptive parents. Some jurisdictions also permit the parents in an open adoption to maintain their visitation and contact rights. 

Closed Adoption:

A closed adoption, meanwhile, results in the birth mother relinquishing all rights over the child and allows a state administrative agency to conduct the selection process. 

Methods of Adoption:

Parents looking to adopt can choose one of two methods, they may either adopt through an agency or they may adopt through independent contact with the biological parents. Both public agencies and private agencies exist for the purpose of facilitating adoptions. States run the public agencies, as a state interest exists in placing parentless children with couples looking to adopt.

Public agencies employ a stringent test to determine the suitability of parents looking to adopt. With adoptions through public agencies, adoptive parents do not have the child placed with them until the natural parents have relinquished their rights. Both public and private agencies abide by these practices.

With independent adoptions, the natural parents take on the responsibility for finding suitable adoptive parents. Often, the natural parents will place the child in the prospective adoptive parents’ house for a trial period without the natural parents having relinquished their rights.

Who May Adopt:

The U.S. Constitution does not provide a fundamental right to adopt. States have the power to prohibit adoptions and to prohibit adoption by certain groups. 

The Uniform Adoption Act:

Statutes determine the requirements regarding who may adopt in each state. The Uniform Adoption Act ("The Act") is a model act that was proposed by the U.S. Uniform Laws Commission. Some states have modeled their adoption statutes upon The Act. The Act provides that any individual may adopt another individual to create the legal relationship of child and parent, subject to the adopting individual having reached adulthood.

State Variance:

States vary about factors it considers as disqualifying one’s ability to adopt. Some statutes disqualify unmarried or single individuals. Others disqualify those suffering from physical or mental disabilities. Some states have imposed “reputability requirements.” Under a reputability requirement, individuals with criminal histories or employment instability would not qualify as suitable for adoption.

To proceed, an individual cannot petition for adoption unless the court makes an official finding that the individual is “acceptable” as an adoptive parent. Before an adoption becomes official, the court must pass upon an investigatory report submitted by the state agency that the individual qualifies as “acceptably suitable” for becoming an adoptive parent. These investigatory reports are tremendously detailed, including the petitioners’ religious backgrounds, social history, financial status, moral fitness, mental and physical fitness, and criminal background. After weighing the factors, the agency makes a recommendation, which the court can accept or reject, with the court basing its decision on serving the best interests and welfare of the child.

Procedure for Adoption:

An individual wishing to adopt must petition the applicable court to grant adoption, presenting evidence that they have satisfied the necessary statutory elements. After an investigation, the state adoption agency presents its report of the petitioners to the court and makes a recommendation.

When the statute requires their consentdue process accords the natural parents an opportunity to be heard by the court on the matter. If the court cannot find the natural parents, the court must take steps reasonably calculated to notify the parents about the termination proceeding. For situations in which the natural parent cannot or does not want to care for the child, the natural parent’s wishes for the child’s placement receive significant weight from the court.

The petitioner bears the burden of proving by a preponderance of the evidence that adoption is in the child’s best interests. An adoptive parent looking to terminate the biological parents’ natural rights must show the action to be in the child’s best interest by “clear and convincing evidence.”

Federal Material

U.S. Constitution and Federal Statutes
  • 25 U.S.C., Chapter 21 - Indian Child Welfare Act
  • 42 U.S.C. § 620 - Adoption Assistance and Child Welfare Act of 1980
  • 42 U.S.C., Chapter 67 - Child Abuse Prevention and Treatment and Adoption Reform Act
  • CRS Annotated Constitution

Federal Agency Regulations

Federal Judicial Decisions

U.S. Supreme Court:

State Material

State Statutes
State Judicial Decisions

International Material

  • Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (29 May 93)

Other References

  • Administration for Children and Families of the U.S. Department of Health and Human Services
  • The ABA Center on Children and the Law
  • ABA Section of Family Law
  • Adoption Network

See also: Family Law; Divorce

[Last updated in June of 2022 by the Wex Definitions Team

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Federal Material

U.S. Constitution and Federal Statutes

Federal Agency Regulations

Federal Judicial Decisions

State Material

State Statutes

State Judicial Decisions

International Material

Conventions and Treaties

Other References

Key Internet Sources

Useful Offnet (or Subscription - $) Sources

  • Good Starting Points in Print:
    • Cahn & Hollinger, Families by Law: An Adoption Reader. New York: New York University Press (2004).

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