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I love New York. The city. The state itself. I just like New York! And after researching how the state handles post-adoption contact agreements, I have even more love for the state. I mean, the state song is, “I Love New York.” Well, I do, too!
Let’s see why.
What may be included in postadoption contact agreements?
Citation: Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b
[Effective 12-21-05]
The parties to an adoption may enter into a written agreement providing for communication or contact between the child and the child’s parent or parents on such terms as may be agreed to by the parties.The agreement also may provide terms and conditions for communication with or contact between the child and the child’s biological siblings or half-siblings, if any. If any such sibling or half-sibling is 14 or older, such terms and conditions shall not be enforceable unless such sibling or half-sibling consents to the agreement in writing.
Nothing in this section shall be construed to prohibit the parties to a proceeding under this chapter from entering into an agreement regarding communication with or contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or the adoptive child’s biological siblings or half-siblings.
For the second (alphabetical) state in a row, we see a lack of referring to the biological parents as birth, natural or anything other than “parents” (at first). I’m kind of impressed. I also think it’s quite forward-thinking to allow siblings who are aged fourteen and older to dictate whether or not they want to continue contact with one another. (One would hope that they had enough foresight to see how important those bonds could be later in life instead of just saying, “Man, my sister is ANNOYING!”)
And the mention that nothing shall be “construed to prohibit the parties” from having their agreement? Well, blow me down with a whisper! I’m pleased.
Who may be a party to a postadoption contact agreement?
Citation: Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b
[Effective 12-21-05]
The parties to the adoption may enter into an agreement regarding communication with or contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or the adoptive child’s biological siblings or half-siblings.If a surrender instrument designates a particular person or persons who will adopt a child, such person or persons, the child’s birth parent or parents, the authorized agency having care and custody of the child, and the child’s law guardian may enter into a written agreement providing for communication or contact between the child and the child’s parent or parents on such terms and conditions as may be agreed to by the parties.
If a surrender instrument does not designate a particular person or persons who will adopt the child, then the child’s birth parent or parents, the authorized agency having care and custody of the child, and the child’s law guardian may enter into a written agreement providing for communication or contact, on such terms and conditions as may be agreed to by the parties.
Wordy, yes. But basically it’s saying that whomever is taking over custody of the child can enter into a written contract with the birth family regarding continuing contact. This also includes contact for siblings. I believe that New York is attempting to cover many different bases here to avoid confusion in different scenarios. However, they’re getting a little too wordy and the meaning is getting lost in the sea of words and letters.
What is the role of the court in postadoption contact agreements?
Citation: Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b
[Effective 12-21-05]
If the court before which the surrender instrument is presented for approval determines that the agreement concerning communication and contact is in the child’s best interests, the court shall approve the agreement. If the court does not approve the agreement, the court may nonetheless approve the surrender; provided, however, that the birth parent or parents executing the surrender instrument shall be given the opportunity at that time to withdraw such instrument.The court shall not incorporate an agreement regarding communication or contact into an order unless the terms and conditions of the agreement have been set forth in writing and consented to in writing by the parties to the agreement, including the law guardian representing the adoptive child. The court shall not enter a proposed order unless it has found that the communication with or contact between the adoptive child, the prospective adoptive parent or parents, and a birth parent or parents and/or biological siblings or half-siblings, as agreed upon and as set forth in the agreement, would be in the adoptive child’s best interests.
Color me shocked. New York takes things to a whole new level by acknowledging that, yes, the court can deny a post-adoption contact agreement. However, if they do? The birth parents are given time to review and decide whether or not they would still want to relinquish. Amen and hallelujah, a state that really gets it! For so many expectant parents considering placement in today’s adoption world, openness is the cusp of their decision. So many would never sign the Termination of Parental Rights (TPR) if they knew that, eventually, they would lose contact with their child. As such, providing birth parents with an “out” if the openness is not going to fly from the very beginning seems to be pretty daggone ethical to me! I’ve got more to say on this matter but it will have to wait!
Are agreements legally enforceable?
Citation: Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b; Fam. Crt. Act § 1055-a
[Effective 12-21-05]
Enforcement of any agreement prior to the adoption of the child shall be in accordance with § 1055-a(b) of the family court act. Subsequent to the adoption of the child, enforcement of any agreement shall be in accordance with § 112-b of the domestic relations law.Agreements regarding communication with contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or biological siblings or half-siblings of an adoptive child shall not be legally enforceable unless the terms of the agreement are incorporated into a written court order.
If an agreement for continuing contact and communication pursuant to § 383-c(2)(b) the social services law is approved by the court, and the child who is the subject of the approved agreement has not yet been adopted, any party to the approved agreement may file a petition with the family court in the county where the agreement was approved to enforce such agreement. A copy of the approved agreement shall be annexed to such petition. The court shall enter an order enforcing communication or contact pursuant to the terms and conditions of the agreement unless the court finds that enforcement would not be in the best interests of the child.
Again, we’re getting a little wordy and thus a little confusing in this section. Basically, it’s coming down to what seems to be a foster care situation (a child that hasn’t been adopted but has a contact agreement) and a child that has been adopted and has a contact agreement. For anything to be legally enforceable, the agreement has to be approved by the court (as was dictated in the last section). The way it will be enforced? Apparently the court will just demand that the current contact agreement be adhered to by the party not doing their job. Seems easy enough to me.
How may an agreement be terminated or modified?
This issue is not addressed in the statutes reviewed.
And so, New York falls short at the end by neglecting to provide citizens with information on how to modify or terminate their agreements. Of course, law savvy folks could simply use that to their advantage and say, “Well, it doesn’t say that you can’t expand our contact agreement!” But I suggest having a good attorney before attempting that route!
Overall, New York is a decent state. Providing an out for birth parents that would otherwise be denied the contact for some reason seems extremely ethical to me. Beyond the fact that they would be provided with choice, simply knowing that fact could help birth and adoptive parents best come to a contact agreement that suited the family in the best possible way for the child! Here’s hoping that families are being properly counseled on this matter!
(By the way, I totally didn’t “plan” for New York to come up on Thanksgiving, the day of the Macy’s Day Parade. It just happened, alphabetically, do fall on today! Happy Thanksgiving!)
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For more, read:
1. Post-Adoption Contact Agreements: New Mexico.
2. Post-Adoption Contact Agreements: New Hampshire.
3. Information from the State Statute Search at ChildWelfare.gov in November 2007.
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