New Hampshire's state fruit is the pumpkin. (Did you know pumpkin is a fruit?) And so it's fitting to review this state's outlook on post-adoption contact agreements with only two days left before Thanksgiving. (You know you're thinking about pumpkin pie right now.) (I am!)

It's not too shabby. Not the best, but really, not too shabby.

What may be included in postadoption contact agreements?
Citation: Rev. Stat. § 170-B:14
[Effective January 1, 2006]
Nothing in this chapter shall be construed as encouraging, discouraging, or prohibiting arrangements or understandings reached between the prospective adoptive parents, the birth parents, or the licensed child-placing agency with respect to the postsurrender exchange of identifying or nonidentifying information, communication, or contact. Except in cases involving the department as provided below, no such arrangement or understanding shall be binding or enforceable.

In adoptions involving a child who is under either the legal custody or guardianship of the department, a voluntarily mediated agreement shall be enforceable as provided in this paragraph. The purpose of this paragraph is to facilitate the timely achievement of permanency for children who are in the custody or guardianship of the department by providing an option for the parties to enter into a voluntarily mediated agreement for ongoing communication or contact that is in the best interests of the child, that recognizes the parties' interests and desires for ongoing communication or contact, that is appropriate given the role of the parties in the child's life, and that is legally enforceable by the courts.

Well, interesting to say the least. While they say, in the first paragraph, that nothing shall be construed as encouraging, discouraging or prohibiting contact, leaving no room to make a contract, joined into by both adult parties, enforceable does seem rather discouraging to me. While I do see the bonus points to providing enforceable contracts for children who are under state care and thus waiting for families (the bonus points being that they are able to be placed with less resistance), I am wondering why that opportunity isn't afforded to birth parents who are voluntarily relinquishing their children. It doesn't seem quite fair to me.

Who may be a party to a postadoption contact agreement?
Citation: Rev. Stat. § 170-B:14
[Effective January 1, 2006]
Prior to the entry of any adoption decree, the department, prospective adoptive parents, and birth parents may voluntarily participate in a court-approved mediation program in order to reach a voluntarily mediated agreement.

Other people may be invited to participate in the mediation by mutual consent of the department, birth parents, and prospective adoptive parents. However, these invitees shall not be parties to any agreement reached during that mediation.

Another interesting addition here! This is the first state we have seen impose a "court-approved mediation program" in order to come up with their post-adoption contact agreement. How interesting! While I could hope that it would be equally friendly to birth parents as to adoptive parents, I can't help but feel somewhat skeptical. That said, I also have hope that a court-mediated program would be less likely to overtly favor adoptive parents than, say, an agency who was trying to appease their paying clients. It could go either way, I'm sure!

What is the role of the court in postadoption contact agreements?
Citation: Rev. Stat. § 170-B:14
[Effective January 1, 2006]
The court shall approve the voluntarily mediated agreement if the court determines that:

* The agreement is in the best interests of the child. In making this determination, the court may consider:
o The length of time that the child has been under the actual care, custody, and control of any person other than a birth parent
o The desires of the child's birth parents and the child as to the child's custody or residency
o The interaction and interrelationship of the child with birth parents, siblings, and any other person who may significantly affect the child's best interests
o The adjustment to the child's home, school, and community
o The willingness and ability of the birth parents to respect and appreciate the bond between the child and the adoptive parents
o The willingness and ability of the adoptive parents to respect and appreciate the bond between the child and the birth parents
o Any evidence of abuse or neglect of the child
o The recommendations of any guardian ad litem
* An affidavit made under oath shall accompany the agreement stating that the agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud, or duress.

To be approved by the court, the agreement shall contain the following statements:

* The agreement is entered into pursuant to the provisions of law.
* Any breach, modification, or invalidation of the agreement shall not affect the validity of the surrender of parental rights or the adoption decree.
* 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 the agreement.

If the child is 14 or older, the agreement also shall contain the written consent of the child.

Again, I'm concerned as to how voluntarily relinquishing birth parents in domestic newborn adoptions will be treated regarding "length of time" spent with the child and other bonding issues. However, I do find it interesting that New Hampshire has added in "the willingness to appreciate the bond between the child and the adoptive parents" and the vice versa. We've not seen anything quite like this before in any other states! I've always been supportive of the fact that birth parents need to respect the role of the adoptive parents as the parents of the child. However, I'm usually met with resistance when I suggest that adoptive parents should also respect the role that the birth parents can/should play in their placed child's life. I'm quite shocked (and pleased) to see a state even acknowledge that birth parents have a bond with the relinquished child.

Are agreements legally enforceable?
Citation: Rev. Stat. § 170-B:14
[Effective January 1, 2006]
To be enforceable, a voluntarily mediated agreement shall be in writing, approved by the court prior to the date for entry of any adoption decree, incorporated but not merged into any adoption decree, and shall survive as an independent agreement.

A voluntarily mediated agreement need not disclose the identity of the parties to be enforceable, but if an identity is not disclosed, the unidentified person shall designate a resident agent for the purpose of service of process.

A voluntarily mediated agreement shall cease to be enforceable on the date the child turns 18 years old. The court issuing final approval of the agreement shall have continuing jurisdiction over enforcement of the agreement until the child reaches his or her 18th birthday.

If this section is read solely by itself, it seems rather concise. However, when compared to the first section, it gets a little confusing. By itself, New Hampshire hits on many answers that are brought up by this question, including that parties do not need to disclose their information and that the contract ceases on the day the adopted child turns eighteen. Of course, they neglect to address how, exactly, the agreement will be enforced. Furthermore, when you add in the statements from the first section, we're left with the question, "So, are all adoption agreements enforceable or just the ones that were formed in order to adopt a child out of state care?" I don't have the answers. Once again the confusion shows a need to be absolutely clear on what you are talking about when it comes to differences between foster-to-adopt situations and domestic newborn adoptions.

How may an agreement be terminated or modified?
Citation: Rev. Stat. § 170-B:14
[Effective January 1, 2006]
A party to a court-approved voluntarily mediated agreement may seek to modify, enforce, or discontinue the agreement by commencing an equity action in the court that approved the agreement. However, before a court may enter an order requiring modification of, compliance with, or discontinuance of the agreement, the moving party shall certify that he or she has participated, or attempted to participate, in good faith in mediating the dispute giving rise to the action prior to filing the action. A court order for modification, enforcement, or discontinuance of the terms of the voluntarily mediated agreement shall be the sole remedies for breach of the agreement.

The court may modify the terms of the agreement if the court finds by a preponderance of the evidence that there has been a material and substantial change in the circumstances and that the modification is in the best interests of the child.

A court-imposed modification of a previously approved agreement may limit, restrict, condition, decrease, or discontinue the sharing of information and/or 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 the parties to the agreement. The court also may impose appropriate sanctions consistent with its equitable powers but not inconsistent with this section, including the power to issue restraining orders.

Nothing in this section shall be construed so as to abrogate the rights of the adoptive parents to make decisions on behalf of the child, except as provided in the court-approved voluntarily mediated agreement.

Wow. We've branched into discussion on retraining orders! Goodness. And once again, we see a state that refuses to expand contact but will restrict it. I would feel more at ease with this particular limitation by the courts if I felt that expectant parents considering adoption and potential adoptive parents were being properly counseled on the issues concerning openness in adoption. Instead, many are not told about the good and the bad involved and are often caught off guard by problems that arise. Many don't realize the amount of work that is required to make an open adoption work and work well. Furthermore, so many don't realize that they could, actually, want more contact than the agency is suggesting is "acceptable" or "the norm." If families were being properly counseled, I could see how this particular limitation would help families avoid being forced to do something they didn't want to do. But what about families that want to add more contact and be held responsible to uphold their end of that new deal?

And so, New Hampshire leaves us with a few questions but also has some interesting things to say on the matter. I can't write them off completely. But I can encourage them to look back over their wording and clean up some stuff as well as alert families within the state to consider the wording discrepancies before they get caught in legal-mumbo-jumbo-crossfire!

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For more, read:

1. Post-Adoption Contact Agreements: New Hampshire.

2. Post-Adoption Contact Agreements: Nebraska.


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

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