e-mail
The magnolia is Louisiana’s state flower. Knowing how pretty magnolia trees are in full bloom, I would hope that their post-adoption contact agreement laws are of a similar beauty. While they aren’t as ugly as some states, take Florida for example, they do leave a little room for improvement. Not because they’re inherently unfriendly but because of a little bit of confusion on the wording. They do, however, offer some great examples of how specific wording can benefit all involved.
And go!
What may be included in postadoption contact agreements?
Citation: Children’s Code art. 1292.2
Every postadoption contact agreement shall be in writing and signed by the adopting parents and by any adult granted contact. If a sibling granted contact is a minor, his or her parent or legal custodian shall sign the agreement.On behalf of the child who is to be adopted, the department and counsel for the child shall report to the court its approval or objection to the agreement and the child’s wishes concerning continuing contact. The court-appointed special advocate (CASA) for the child, if any, may also submit recommendations to the court regarding a proposed agreement.
If requested by the parties, the court may refer them to mediation to assist them in drafting the agreement. If necessary to ensure that the child’s best interest is taken into account, the court may also appoint independent counsel for any child involved in future continuing contact.
A continuing contact agreement may authorize the exchange of information, communication by telephone, mail, email, or other means, and direct visitation in either the adopting parents’ home or elsewhere through a mutually agreed upon intermediary.
I must say that Louisiana gets mighty specific on their wording, don’t you think? Of course, the wording both in this section and the next lead me to believe that this state is focusing more on contact agreements within a foster-to-adopt kind of situation as opposed to a domestic newborn adoption. Once again, as the situations are so vastly different, I’m beginning to see the need for two separate kinds of law. In Louisiana’s wording, which you’ll see even more blatantly in the next section, biological parents are basically assumed guilty, not ever innocent. For parents who are voluntarily relinquishing their newborn children, being treated to and referred to as nothing more than a criminal could further impede their inner healing.
Anyway! Small tangent there that I plan on revisiting in the next section! Moving on we see that Louisiana is smart in stating that it is a written contract, signed by all parties involved and can include anything from letters to visitation. I do find it interesting that said visitation has to occur at the adoptive parent’s home or a mutually agreed place with an intermediary. Again, this lends to the belief that this wording was chosen based on mothers and fathers who have had children removed by the state as opposed to voluntarily relinquishing parents.
Who may be a party to a postadoption contact agreement?
Citation: Children’s Code art. 1269.1; 1269.6
In an agency adoption in which the department is the custodian of the child, the court may approve an agreement providing for continuing contact between the child to be adopted and his grandparent, sibling, and any parent, if both of the following conditions are met:* The child has an established, significant relationship with that person to the extent that its loss would cause substantial harm to the child.
* The preservation of the relationship would otherwise be in the best interest of the child.If there is no parental relationship that meets the requirements of the paragraph above, the court may approve an agreement providing for continuing contact between the child to be adopted and any other relative by blood, adoption, or affinity whose relationship with the child meets those requirements.
The adoptive parent and the grandparent, sibling, and any parent whose consent or relinquishment is required for the child’s adoption, or any other relative by blood, adoption, or affinity who may be permitted continuing contact may enter into an agreement regarding communication or contact after entry of a final decree of adoption.
Mmhmm. This wording is leaving out the entire domestic newborn adoption scheme of things. Of course, at the same time, biological grandparents who are interested in having a relationship with their relinquished grandchild (through domestic infant adoption) could benefit from this wording if their own child had wanted a closed adoption. Again, that’s why it’s so important to differentiate between various adoption circumstances. You are going to have people trying to take advantage of laws that were written for an entirely different circumstance if you don’t watch what you’re saying.
What is the role of the court in postadoption contact agreements?
Citation: Children’s Code art. 1269.3; 1269.4
Within 10 days after the petition is filed, the department or attorney for the prospective adoptive parents shall file in the court in which the adoption is pending an agreement for continuing contact. The agreement may be filed later than 10 days after execution only with leave of court for good cause shown.If either the department or counsel for the child objects to the agreement, the court may conduct a hearing before approving the agreement.
The court shall review a continuing contact agreement executed in conformity with the requirements of this chapter.
If the court finds that an agreement serves the best interest of the child, the agreement shall be incorporated into a judgment of the court. An agreement reached by the parties and approved by the department and counsel representing the child is presumed to serve the best interest of the child. The judgment shall provide that failure to comply with the terms of the agreement does not constitute grounds for annulling a surrender or the final decree of adoption.
If the court rejects the agreement, it shall make specific findings of fact in support of its conclusion that the best interest of the child would not be served by approval of the agreement. The factors to be considered shall include:
* The duration of the child’s relationship with the parent, grandparent, sibling, or other relative by blood, adoption, or affinity seeking continuing contact
* The strength of the psychological attachment between the child and the individual seeking continuing contact
* The resulting harm to the child if the relationship is not preservedIf the child is 12 or older, the court shall solicit and consider the child’s wishes in the matter.
Oh, so many questions I have here! Regarding a rejection by the court, I’m wondering if a domestic newborn adoption contact agreement could even be approved. Considering that the general public doesn’t view the gestation period as a time of bonding and motherhood, would that nine months together be considered as part of the “duration of the child’s relationship with the parent?” How strong would the “strength of the psychological attachment between the child” and the mother be considered if we are talking solely about a newborn? What, then, shall we do about biological fathers who did not carry the child within their body but are interested in continuing contact with their relinquished child? What is the child’s psychological attachment to them? And what, exactly, are the characteristics that the court is using for “the resulting harm to the child if the relationship is not preserved?” Are they basing that decision off The Primal Wound or are they basing it off of the stereotypical lack of connection between biological parents and their relinquished children?
I told you this section gave me pause and a bunch of questions!
Are agreements legally enforceable?
Citation: Children’s Code art. 1269.5; 1269.2
A continuing contact agreement shall be enforceable only if filed with the court and approved in accordance with Article 1269.4.In order to be enforceable, the agreement must include the following declarations:
* The parties have freely and voluntarily entered into the agreement and it reflects their intent to be bound by its terms, unless later modified by a replacement agreement or by court order.
* The sibling, grandparent, parent, or other relative by blood, adoption, or affinity, or his or his representative, if any, has been counseled and advised by the department, by counsel, or by another appropriate professional about the meaning of these declarations and the effects of a continuing contact agreement and each has had the opportunity to have the agreement reviewed by his counsel.
* The sibling, grandparent, parent, or other relative by blood, adoption, or affinity, or his or her representative, has been informed and understands that upon the execution of the agreement, any dispute or litigation regarding its terms shall not affect the validity of any surrender, termination of parental rights, adoption, or custody of the adopted child.
* The adopting parents have been informed and understand that the sibling, grandparent, parent, or other relative by blood, adoption, or affinity may seek enforcement of the terms of the agreement in accordance with Article 1269.7.
Okay, so, first: for the contract to be legally enforceable at all, it has to be filed within ten days of the petition to adopt. (See previous section.) Eleven days? Too bad, so sad. Other than that, if t’s are crossed and i’s are dotted, then sure! It’s legally enforceable! We don’t know how but it is! Oh, maybe they’ll tell us in the next section.
How may an agreement be terminated or modified?
Citation: Children’s Code art. 1269.7
Unless another court has jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the court shall retain jurisdiction after the decree of adoption is entered for the purpose of hearing motions brought to enforce, modify, or terminate an agreement entered into pursuant to the provisions of this chapter.Before hearing such a motion, the court shall refer the parties to mediation. Only if the court finds that the party seeking relief has participated or attempted to participate in good faith in mediating the dispute may it proceed to a determination on the merits of the motion.
If the child is 12 or older, the court shall solicit and consider the child’s wishes in the matter.
The court shall order continuing compliance in accordance with the agreement and refuse to modify or terminate it unless it finds that there has been a change of circumstances and the agreement no longer serves the best interest of the child.
Ah-ha! Well, thank you Louisiana! You’re the first state thus far to tell us what you’re going to do! Bravo! As opposed to the other states we’ve looked at thus far, Louisiana sets out a plan. They’re sending the family(ies) to mediation and then ordering continuing compliance with the agreement unless too much “stuff” has changed and the agreement is no longer benefiting the child. I’m so pleased to see a state say, “Yes, we’re going to demand that families stick to their side of the agreement.” It’s refreshing. Now, granted, I’m sure there are loopholes among loopholes but it’s encouraging to see a state take this sort of stand on this particular topic. While the adoption cannot be overturned at least the judge can bang his gavel and say, “Do your part, darn it!” (That said, it does not say whether or not birth parents are allowed to petition the court for review. Some states do not allow birth parents to do so, only the adoptive parents.)
And so, while Louisiana made good use of some specific wording and language, they have some other problems by assuming that all post-adoption contact agreements are dealing with foster-to-adopt families and issues. It is confusing for families dealing with domestic newborn adoption to read this and figure out how the laws apply to their situations. It’s also rather frustrating, as a birth parent, to be assumed guilty and “less than” just because you are relinquishing your child. I think this state would be best served by rewording some issues or adding in specific wording to accommodate all families.
//
For more, read:
1. Post-Adoption Contact Agreements: Indiana.
2. Post-Adoption Contact Agreements: Florida.
3. Information from the State Statute Search at ChildWelfare.gov in November 2007.
//
Photo Credit.
