Post-Adoption Contact Agreements: Massachusetts

I was kind of dreading the start of this week. I didn’t want to dive back into the state-by-state look I’ve been taking at post-adoption contact agreements because, let’s face it, some states aren’t really clear on the issue. Or friendly. Thankfully, Massachusetts has decided to let us start the week on a good foot! Not only is the wording easy to understand but it covers many questions that we’re normally left asking at the end of our review.

Good job, Massachusetts! Let’s see how they handled the issues!

What may be included in postadoption contact agreements?
Citation: Gen. Laws Ann. ch. 210, § 6C

Prior to the entry of an adoption decree, prospective adoptive parents and a birth parent may enter into an agreement for postadoption contact or communication between or among a minor to be adopted, the prospective adoptive parents, and the birth parents.

While not too wordy, this state gets right to the point. Timeline? Before the entry of the adoption degree (finalization). Between whom? Minor adopted child, birth and adoptive parents. Seems easy enough. If only other states got right to the point like Massachusetts has done here!

Who may be a party to a postadoption contact agreement?
Citation: Gen. Laws Ann. ch. 210, § 6C
The agreement may be between the prospective adoptive parents and the birth parents.

This, of course, seems redundant to me in lieu of the previous statement.

What is the role of the court in postadoption contact agreements?
Citation: Gen. Laws Ann. ch. 210, § 6C
The court shall approve an agreement for postadoption contact or communication if the court finds that such agreement is in the best interests of the child, contains terms that are fair and reasonable, and has been entered knowingly and voluntarily by all parties to the agreement.

The requirement may be satisfied by an affidavit executed by all parties, either jointly or separately, that is filed with the court. The affidavit shall state that the agreement is entered into knowingly and voluntarily and is not the product of coercion or duress.

To be approved by the court, an agreement for postadoption contact or communication shall contain the following statements:

* The agreement is entered into pursuant to the provisions of chapter 210, § 6C.
* Any breach, modification, or invalidation of the agreement or any part of it shall not affect the validity of the adoption. The adoption shall be final.
* The parties acknowledge that either the birth or adoptive parents who have entered into the agreement have the right to seek enforcement.
* The parties have not relied on any representations other than those contained in this agreement.

The agreement shall be signed by the parties and acknowledged before a notary public as the free act and deed of the parties. If the child is above the age of 12, the agreement shall contain the written consent of the child.

If the child is in the custody of the Department of Social Services, the agreement shall contain the written approval of the department and the attorney for the child. If the child is in the custody of a licensed childcare agency, the agreement shall contain the written approval of the agency.

And so, we take a moment and bow to the superiority that is Massachusetts state wording. Talking about covering your bases in a clear and concise manner! Not only does this wording provide for birth parents and adoptive parents involved in domestic newborn adoption but states additional requirements for children in state care or in care of the placing agency. I like the mention and requirement that the agreement is being entered into willingly! Of course, while the adoption cannot be overturned, either adult party in the agreement can contest to enforce the agreement. I just give a general thumbs up to the way this state has handled this particular section.

However, are we about to get wordy?

Are agreements legally enforceable?
Citation: Gen. Laws Ann. ch. 210, §§ 6C; 6D
To be enforceable, an agreement for postadoption contact or communication shall be in writing, approved by the court prior to the date for entry of the adoption decree, incorporated but not merged into the adoption decree, and shall survive as an independent contract.

An agreement under this section need not disclose the identity of the parties to be enforceable, but if an identity is not disclosed, the unidentified person shall designate an agent for the purpose of receiving court notices.

An agreement for postadoption contact or communication shall cease to be enforceable on the date the adopted person turns 18 years of age.

A party to a court-approved agreement for postadoption contact or communication may seek to enforce the agreement by commencing a civil action for specific performance. A court order for specific performance of the terms of a postadoption contact agreement shall be the sole remedy for breach of an agreement.

In such proceedings, parties shall not be entitled to the appointment of counsel. However, the court may appoint a guardian ad litem to represent the interests of the child.

If the court finds that an action brought under this section was wholly insubstantial, frivolous, and not advanced in good faith, the court may award attorney’s fees to all prevailing parties.

Nothing in the agreement shall preclude a party seeking to enforce an agreement for postadoption contact or communication from utilizing child welfare mediation or permanency mediation before, or in addition to, the commencement of a civil action.

Ah, there’s a difference between being wordy and completely covering all questions and pertinent information. Massachusetts takes the latter and completely blows the others states (thus far) out of the water with regard to covering this question. After all, this is the question that usually leaves us with more questions. This time? Questions are answered. Either party can file a petition, as we learned in the last section, to enforce the agreement. In this section, we learn that it will be a civil suit and the result of the civil suit will be to enforce the contact/communication in question/error. To avoid parties taking each other to court for silly reasons, if the court finds that the civil suit was done for an insignificant reason, the other party can be awarded court costs (to be paid by the filing party). That would keep me from filing for something silly! Massachusetts does mention that once the child turns eighteen, the enforceability of the agreement flies out the window. As I said, they covered everything. I’m pleased. For once!

How may an agreement be terminated or modified?
Citation: Gen. Laws Ann. ch. 210, § 6D
In an enforcement proceeding, the court may modify the terms of the agreement if the court finds that there has been a material and substantial change in circumstances and the modification is necessary in the best interests of the child. A court-imposed modification of a previously approved agreement may limit, restrict, condition, or decrease contact between the birth parents and the child but in no event shall a court-imposed modification serve to expand, enlarge, or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents.

Now this is interesting and provides good reason for adoptive and birth families to research open adoption contact and consider what their personal limitations may be. As you can see, as a result of a civil suit to enforce the adoption, the judge can limit the amount of contact (if it’s in the best interest of the child) but the contract cannot be modified to increase the amount of contact. I do find this somewhat frustrating, especially as so many agencies are encouraging birth and adoptive families to “agree to the minimum” or “revisit it later once you see where things are going.” Unfortunately, that’s really bad advice for families who happen to reside in Massachusetts. Waiting to revisit the issue later leaves birth and adoptive parents without the ability to make their newly expanded agreement legally binding. Of course, the family can choose, on their own, to expand that contact on the basis of a verbal agreement. However, should something go wrong with that agreement, neither party has a legal leg to stand on to enforce the verbal change. The court will stick with the original written agreement. As relationships, inside and outside of adoption, tend to ebb and flow, I think this particular limitation is too restrictive. I see the basis of reasoning behind it but I don’t agree with it.

Overall, Massachusetts is leaps and bounds ahead of the others states we have covered. They address issues that previously left us asking questions. They differentiate between domestic newborn adoptions and foster-to-adopt situations. They tell us, exactly, what to expect if a party tries to enforce the agreement. Of course, while I don’t agree with the last point that agreements cannot be expanded upon, I commend them for point-blank addressing the issue so that parties living in the state aren’t left wondering what is available. Hopefully agencies working within the state are informing their clients about this particular point so that they may research, consider their feelings and appropriately word their contracts.

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For more, read:

1. Post-Adoption Contact Agreements: Maryland.

2. Post-Adoption Contact Agreements: Louisisana.

3. Information from the State Statute Search at ChildWelfare.gov in November 2007.

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