Adopting the New Amendments Regarding Post-Adoption Contact (reprint)
Recently the state legislature passed amendments (hereinafter “Amendments”) to Pennsylvania’s adoption statutes, found in 23 Pa.C.S. Section 2731 et seq, regarding post-adoption contact agreements. Understanding these amendments is crucial for any practitioner who handles adoption matters, however it should be noted that each local jurisdiction has procedural idiosyncrasies that must be accounted for when so doing. The Amendments certainly apply to adoptions to be filed going forward, but it is unclear if the Amendments apply to adoptions filed prior to the passage of the Amendments.
The Amendments are designed to provide a statutory basis to create, facilitate the enforcement of, and standardize post-adoption contact agreements. A post-adoption contact agreement is one in which the adopting parent(s) enter into a contract with the adopted-child’s biological parent(s) and relative(s) to lay out the terms and conditions of the biological parent(s) and relative(s)’ contact and/or communication with the adopted-child after the adoption of the child is completed.
Under the terms of the Amendments, any post-adoption contract (“Contract”) must include four (4) essential elements. First, the Contract must be in the best interests of the adopted-child. Second, the Contract must indicate recognition of the parties’ interest and desire for ongoing communication and/or contract with the child. Third, the Contract’s terms are to be appropriate considering the role each party is to take in the adopted-child’s life after his adoption. Finally, fourth, the Contract is, of course, subject to the approval of the Court.
Approval of the court is dependent upon a variety of factors. First, the parties must enter into the Contract knowingly and voluntarily and an affidavit of the same must be made under oath to affirm the same and that coercion, fraud, and/or duress played no role in the formation of the Contract. Second, the court must determine that the Contract must be in the best interest of the adopted-child. When determining whether the Contract is in the best interests of the adopted-child, the court may consider factors as follows: “(i) The length of time that the child has been under actual care, custody and control of a person other than a birth parent and the circumstances relating thereto. (ii) The interaction and interrelationship of the child with birth relatives and other persons who routinely interact with the birth relatives and may significantly affect the child’s best interests. (iii) The adjustment to the child’s home, school and community. (iv) The willingness and ability of the birth relative to respect and appreciate the bond between the child and prospective adoptive parent. (v) The willingness and ability of the prospective adoptive parent to respect and appreciate the bond between the child and the birth relative. (vi) Any evidence of abuse or neglect of the child.” 23 Pa.C.S. Section 2735(b)(2). A Contract may only be modified by an adoptive parent and/or adopted-child twelve (12) years old or older by filing an action with the court that finalized the adoption. A modification may only be approved by a Court if it “finds by clear and convincing evidence that modification serves the needs, welfare and best interest of the child.” 23 Pa.C.S. 2737(b).
The possible parties to the Contract are also specifically laid out by statute. The parties may include the adoptive parent(s) as well as so-called “birth relatives.” Birth relatives may include parents, grandparents, step-parents, siblings, uncles, and aunts. Pursuant to 23 Pa.C.S. Section 2733, siblings in this context also include the adopted-child’s blood siblings who are not also being adopted by the adopting parents. In the event that the adopted-child’s siblings are minors and are to have contact with the adopted-child post-adoption per a Contract, the minor siblings are to be represented by a guardian ad litem to negotiate the Contract. Finally, although the adopted-child is technically the subject of a Contract as opposed to a party, if the adopted-child is twelve (12) years old or older, the Contract cannot be ratified unless the adopted-child gives his consent.
The Amendments also include notice requirements for the Contract and its filing. The requirements for notice are unclear and nebulous. It is notable that while a variety of birth relatives may be parties to the Contract, only the birth parents have to be given notice and there is no requirement to provide the presumptive father notice. There is also virtually no guidance of how notice is to be provided. The only guidelines provided by the Amendments for notice is that it must be provided, and court approved, before the entrance of the adoption decree. Furthermore, sufficient time must be provided to the birth parents to engage the process of contracting before the expiration of the thirty (30) day period wherein they may revoke their consent to the adoption process.
The Amendments also lay out enforcement and discontinuance provisions. The Amendments state rather obviously that a Contract can only be enforced if it is in compliance with the terms of the Amendments described above. The Amendments first make clear that regardless of whether the Contract is violated, the adoption decree cannot be set aside on that basis alone. When seeking enforcement, a party may only see specific performance of the Contract. A party may only seek enforcement of the Contract if that same party is also in substantial performance of the Contract and can show by clear and convincing evidence that enforcement serves the needs, welfare, and best interest of the child. The Contract’s enforceability terminates per its own terms and/or when the adopted-child turns eighteen (18) years old, whichever comes first. Finally, the above constitutes the exclusive and entire remedy available for a party seeking enforcement of a Contract, and “no statutory or common law remedy shall be available for enforcement or damages in connection with an agreement.” 23 Pa.C.S. Section 2738(f) Alternatively, an adopted-child, upon reaching the age of twelve (12), may petition the Court for discontinuance of the Contract. A Court may only order discontinuance if there is clear and convincing evidence that it would serve the needs, welfare, and best interests of the adopted-child. If a party seeks enforcement and/or discontinuance for reasons which are “insubstantial, frivolous or not advanced in good faith, the court may award attorney fees and costs to the prevailing parties.” 23 Pa.C.S. Section 2742.
The above is simply an overview of the Amendments. It is clear that when handling an adoption matter, a practitioner must ensure full compliance with them and facilitate, to the best of his ability, the formation and ratification of a post-adoption contact agreement.
This article was originally published in The Legal Intelligencer on April 2, 2012 and can be found here. Reprinted for the June 2012 edition of the Pennsylvania Bar Association publication “Pennsylvania Family Lawyer.”