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Creating an Open Adoption Agreement

Dear Katie,

Our child’s social worker has asked us to consider what we would want to put in an Open Adoption Agreement (OAA) with the child’s parents.  We have no idea what to do.  What should be included in an OAA?  What shouldn’t be in an OAA?  Please help!


Signed,

Confused

Dear Confused,


Open Adoption Agreements are legally binding contracts stipulating future contact between the child, the prospective adoptive family and the child’s birth parents.  Let me repeat.  These contracts are legally binding.  Don’t agree to the agreement unless you plan to uphold your responsibilities outlined in the contract.  It’s not ok to promise the parents a whole bunch of stuff, and not really intend to follow through.  Its not ethical, and it can land you back in court for breach of contract (I’m not a lawyer, so please don’t quote me on these legal terms).  But yes, it can and has happened that an adoptive parent has not followed through with their responsibilities and the birth parent has successfully taken them to court.  So again, make sure you really intend to follow through with the agreement before you sign.  


First thing to consider – visitation.  You will be asked to specify the MINIMUM number of visits you agree to facilitate.  When we were writing our OAA, the assistant attorney general would not agree to more than 3 visits per year.  You can always have more visits if both parties are agreeable.  This is the bare minimum you will do yearly.  I can’t tell you what the right answer for your family is here.  You have to figure this out on your own.  But here are some things to consider:

  • There is A LOT of protective language written into the standard OAA for the child and adoptive parents.  Statements like this:


  • The adoptive parents have the discretion to limit future visitation between the child and the birth parent if the birth parent fails to appear for any pre-scheduled visit without adequate notice.

  • The adoptive parents have discretion to terminate a visit at any time, and limit future visitation between birth parent and the child, if they observe any inappropriate behavior on the part of the birth parent and deem the visit is harmful to the child.  The birth parent may not bring anyone to the visit without prior approval from the adoptive parents.  

  • The adoptive parents have the discretion to terminate a visit at any time and to limit future visitation between the birth parent and the child, if the birth parent, or anyone accompanying the birth parent, appears to be under the influence of drugs or alcohol at the visits.  

After reading all this protective language, you realize there is a lot left up to the discretion of the adoptive parents.  You are not agreeing to have your child placed into an unsafe or traumatic situation on a regular basis that you have no ability to control.  As the adoptive parents, you have the discretion to terminate unsafe visits immediately.  

When deciding on a number for this section, think about how many times a year you are willing to meet up with the birth parents.  YOU get to have input on place, time, length of visit, etc.  My counsel to you is to consider what is the right level of in person contact for your family.  Even if you agree to 4 visits a year, which can initially seem like a lot, we are in reality talking about maybe 4-8 hours a year.  4-8 hours a year.  That’s it.  It's been shown time and time again that in the vast majority of situations, building and maintaining connections with birth families is beneficial to adoptees.  Think of it as 4-8 hours a year that you are willing to commit to keeping your child connected to their first family.  

The standard language in the OAA states that the birth parent is responsible for all expenses related to visitation.  I really felt uncomfortable with this language.  If our family relocated to Australia, was it really ok to expect our child’s birth mom to come up with the money to fly our family back to Washington just to be able to see her child?  That seemed like a really unfair barrier to visitation.  So, we changed it to state that each party is responsible for their travel expenses to a mutually agreed upon location.  


Ok, now I’m going to get on my soapbox for just a minute.  There is standard language in the OAA that states “If the birth parent fails to request a visit for twelve consecutive months, this agreement will be considered null and void.”  Adoption is a lifelong process.  For adoptees.  For birth parents.  For adoptive parents.  Life is messy and complicated.  Sometimes it takes YEARS for birth parents to be in a place where they want to visit their children.  In my experience, birth parents may be embarrassed and ashamed when they are not doing well, and don’t want their kids to see that.   Most birth parents truly love their children and want what is best for them.  So, when a birth parent is not doing well, they may go silent.  They may not request visits.  They may not respond to letters.  When adoptive parents are able to leave the door open, birth parents can feel like they can walk through that door when they are ready.  If I had closed my child’s adoption after 12 months of no contact, we would have missed out on the beautiful relationship they now have with their first family (not just their mom, but siblings, aunts, cousins, great-great grandmother).  It took 6 years for their first mom to be able to walk through that door.  In our OAA, we ditched the 12 month language and changed it to this:

  • If the birth parent fails to request a visit for twelve consecutive months, any further visits or contact between the birth parent and the child will be left to the discretion of the adoptive parents based on the best interest of the child.  

Next, I’m going to address phone/video contact.  If I recall correctly, there is language in there about a minimum number of phone calls per year between birth parent and child.  I don’t find this language particularly child-centered.  My child hates talking on the phone.  It would not be in their best interest to force them to have regular phone calls with their first mom.  They would not like that at all.  But they do love to text.  So they have decided to communicate with their first mom through text and written letters.  They don’t like to do video chats either.  We rewrote this section of the OAA to be inclusive of texting as an option for communication.  Again, its important to put the needs of the child first in the OAA.  

My final suggestion on this topic is not to set the birth parent up to fail.  Sometimes I read through OAAs that have SO MANY requirements birth parents must meet when requesting a visit.  It would be hard for me to remember all of these details, and I’m not dealing with the grief and loss of my children.  Things like “birth parents must update their address with the adoptive parents within 30 days of moving or this entire contract will be void” or “birth parents may request a visit no more than 1 month prior to the start of the month of the child’s birthday.  If the visit is not requested within 2 weeks of the start of the birthday month, there will be no birthday visit.”  A lot of time the requirements are written so that if one step is missed or is late, there is no visit/phone call/letter.  This is where I ask you to extend compassion.  Don’t make it crazy complicated for a birth parent who is trying to see their child.  Set reasonable boundaries but be willing to flex as much as you are comfortable.  Try hard to keep the child’s best interests at the center of all your decisions.

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