e-mail
Welcome to New Mexico indeed! I’m excited to share this state’s look at post-adoption contact agreements with you even if, in the end, we do have a few minor questions. Some of the wording that this state brings to the game is so far advanced from previous states that we’ve looked at that I can’t help but jump for joy. Of course, the state’s motto is, “It grows as it goes.” And that’s how we should be looking at certain adoption issues when it comes to the laws the govern them, isn’t it? They change and grow as we go along and learn things.
And New Mexico is ready to teach us a few things!
What may be included in postadoption contact agreements?
Citation: Ann. Stat. § 32A-5-35
An agreement for postadoption contact shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption.The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents’ relatives and the petitioner or visitation between the parents or the parents’ relatives and the adoptee. An agreement entered into pursuant to this section shall be considered an open adoption.
Wow! New Mexico steps into the issue on a new foot here, claiming that, unless something is blatantly seen as otherwise, contact is presumed to be in the best interest of the child. Well, I’ll be! I feel pretty darn good about myself right now even though I don’t live in New Mexico! Usually the wording makes it sound like birth parents are guilty until proven otherwise and thus their presence would not be in the best interest of their child. Not here!
This is also the first time, alphabetically speaking, that we’ve seen the words “open adoption” used in the terminology of the statutes. New Mexico seems to be on the up and up. Thus far. Let’s continue on!
Who may be a party to a postadoption contact agreement?
Citation: Ann. Stat. § 32A-5-35
The parents of the adopted person and the petitioner may agree to contact between the parents and the petitioner or contact between the adopted person and one or more of the parents or contact between the adopted person and relatives of the parents.
Okay, say what? Now, normally I’m all for adoptive parents simply being acknowledged as simply parents and it makes me feel nice when birth parents are afforded the same respect but, man, with no determiners, it gets might confusing, don’t you think? I’m assuming that the petitioner is the birth parent and the parents are the adoptive parents. But the whole “relatives of the parents” at the end confuses me. New Mexico seems to be rather progressive in how they’re addressing families touched by adoption, as we saw by the fact that they did include the term “open adoption” in the previous section. However, some determiners would better help the normal, everyday person reading this particular section understand just what we’re talking about… a bit better, wouldn’t you say?
What is the role of the court in postadoption contact agreements?
Citation: Ann. Stat. § 32A-5-35
The court may appoint a guardian ad litem for the child, particularly when visitation between the birth family and the child is included in an agreement, however, this requirement may be waived by the court for good cause shown.If the child is 14 or older, the court may appoint an attorney for the child.
In determining whether the agreement is in the child’s best interests, the court shall consider the child’s wishes, but the wishes of the child shall not control the court’s findings as to the child’s best interests.
Every agreement entered into pursuant to this section shall contain a clause stating that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption, or the custody of the child.
Like many other states, we do see the fact that the validity of the adoption is not brought into question if the contract is not followed by one party or the other. Again, while we’ve seen it time and time again, I feel that’s an important addition to the laws so that families understand that adoptions are final. I’m hoping that expectant parents considering adoption that are working with a potential family to make a post-adoption contact agreement are being counseled on this fact so that they understand, even if the adoptive family decides to fluff off their responsibility, the adoption is and remains final. Without that counseling, birth parents are not being fully informed and that is simply unfair.
Are agreements legally enforceable?
Citation: Ann. Stat. § 32A-5-35
The court shall retain jurisdiction after the decree of adoption is entered if the decree contains an agreement for contact, for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section.
Simply put, yes, the contracts are enforceable. How, of course, isn’t specifically addressed. But they are enforceable. And so, that answers that question.
How may an agreement be terminated or modified?
Citation: Ann. Stat. § 32A-5-35
The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the child’s best interests.
Of course, my only remaining question then is, what if the change of circumstances is a positive one? Could contact then be expanded? Unlike other states that specifically limited the modification solely to lessening contact, New Mexico doesn’t take it that far. Or, if they do, which is possible, they just haven’t been specific on the wording. That’s why it’s so important to be specific!
And so, in the end, New Mexico is a rather birth parent and open adoption friendly state. In fact, they actually use the term “open adoption” which usually tends to make people freak out! I think this state would be an exceptional example of what post-adoption contact agreements could be if they worked a bit harder on specifying some wording. The few questions we have, however, are similar ones we’ve been left with from other states so it’s not likely that this state was purposefully trying to confuse its citizens. Until someone really steps out with specific wording, others are going to follow suit and make similar errors. That said, I like New Mexico!
//
For more, read:
1. Post-Adoption Contact Agreements: New Hampshire.
2. Post-Adoption Contact Agreements: Nevada.
3. Information from the State Statute Search at ChildWelfare.gov in November 2007.
//
Photo Credit.
Bless you for doing this series, Jenna. It is so, so valuable.