Who Can Adopt
In New York State, almost anyone can become an adoptive parent. An adoptive parent must be 18 years old or older and can also be:
- an unmarried person,
- a married couple,
- two unmarried intimate partners,
- a married person who is legally separated from his or her spouse, or
- a married person who has been living apart from his or her spouse for at least 3 years before the adoption case is filed.
You may not be allowed to adopt if you have a felony conviction. Visit Adoption Collateral Consequences.
Adoption in New York
In New York, court adoption records are sealed.
This means that no one can see the court records of an adoption including the public, the adoptive parents, the birth parents, and the adopted child.
Children can’t be bought or sold.
It is a crime to buy or sell children. Any situation that sounds or looks like the buying or selling of children is a criminal act and will be investigated and prosecuted in New York.
A re-adoption case can be filed for international adoptions in New York State.
When an adoption is completed in a foreign country and the only documents to show the legal adoption of the child is issued in the foreign country, a Petition for Registration of Foreign Adoption Order can be filed in either the Family Court or Surrogate’s Court. This will allow the adoptive parents to get a New York court order that recognizes the foreign adoption and allows the parents to get a New York birth certificate from the Department of Health. A full re-adoption case may be necessary to satisfy immigration requirements.
Birthing agreements (sometimes called surrogate parenting agreements) are not binding in New York.
This means that a New York court will not force a birth parent to give her child to another person because she agreed to do so, even if the agreement is in writing.
If the child being adopted is not from New York State, the adopting parents must get approval before the child is brought into New York State.
The Interstate Compact on the Placement of Children (ICPC) is a nationwide procedure for the placement of children across state lines. Requests are processed through the NYS Office of Children and Family Services’ ICPC Unit.
New York State has an Adoption Information Registry.
The Adoption Information Registry can help an adopted person get medical information or general information about their birth parents or, in some cases, siblings. No information that can identify either the adoptee or birth parents is given unless permission has been given.
There are two types of adoptions in New York State, agency adoptions and private placement adoptions. Both types are regulated by state laws and the adoption must be approved by the court before it becomes official.
These adoptions are of children who are already in the care of the state through a foster care agency or a private adoption agency.
In a foster care adoption, when a child is in the care of the state and living with foster parents, the agency will file a petition to terminate the parental rights of the child’s parents so that the child can be adopted. A child’s biological parents may also voluntarily give up their parental rights to a foster care agency.
In a private agency adoption, the biological parents have voluntarily given up their parental rights and have placed the child with the agency for adoption. The adoption agency will place the child with prospective adoptive parents.
Prospective adoptive parents can apply to adopt through the foster care agency or the private adoption agency. The agency will conduct a home study to investigate the prospective adoptive parents and a do background check to see whether the home is suitable for a child. The agency will certify the adoptive parents. In an agency adoption of children in foster care, the city or state will pay for the adoptive parent’s attorneys.
Private Placement Adoption
Any adoption that is not an agency adoption is a private placement adoption. Usually, there is an agreement between the child’s biological parents and the people who want to adopt the child. The people who want to adopt may be a stepparent or another family member.
International adoptions where a New York State resident adopts a child who was born and living in a different country is also a private placement adoption. A Petition for Registration of Foreign Adoption Order can be filed in either the Family Court or Surrogate’s Court. This will allow the adoptive parents to get a New York court order that recognizes the foreign adoption and allows the parents to get a New York birth certificate from the Department of Health. A full re-adoption case may be necessary to satisfy immigration requirements.
Before the child is placed in the home, the court must pre-certify that the prospective adoptive parents are approved to take temporary custody of the child. This means that the court will have a licensed social worker do a home-study and investigate the adoptive parents’ home and background to make sure that it is appropriate for a child.
If the court finds that the prospective adoptive parents are able to care and support the child, the court will certify them as qualified adoptive parents for up to 18 months. This pre-certification is not required in stepparent adoptions or in international adoptions where the child is already living with the adoptive parents.
After the adoptive parents are certified and the child is living with them, the adoptive parents will file a petition for adoption. The court will require that child’s biological parents are consenting to the child’s adoption or that the court has terminated their parental rights.
Consent and Notice
Consent to an adoption refers to the agreement by a parent or agency to give up a child for adoption and release all rights and duties to that child. Notice refers to who must be told about the adoption.
In an Agency Adoption
In an agency adoption, the foster care agency or the private adoption agency consents to the adoption of the child in its care and guardianship.
If the child is 14 years old or older, the child must also consent to the adoption.
In a Private Placement Adoption
In a private placement adoption, private individuals must give their consent before a child can be adopted. Consent can be given in front of a judge (a judicial consent) or not in front of a judge (an extra-judicial consent).
The consent to an adoption can be given in writing in court in front of a judge. In this case, it’s immediately irrevocable. This means that the parent cannot change their mind and have their child returned.
If the consent is given not in front of a judge, such as in a hospital, the consent must be in a writing that is signed and notarized. The parent has 45 days to change their mind and take back the consent. However, even if consent is withdrawn during those 45 days, it does not mean that the child will be returned to the birth parents. If the adoptive parents oppose the withdrawal of consent, then a hearing will be required. During the hearing, a judge will determine if the consent was properly taken back in time and decide custody of the child based on what would be in the best interest of the child.
Who has to give consent before a child can be adopted:
If the birth parents are married, then both parents must consent to the adoption.
If the birth parents are not married, then the mother must consent to the adoption. If the father has had a lot of contact with the child, then his agreement is also required.
If the father’s identity is not known, then the father’s agreement may not be required.
If the father’s identity is known but the father hasn’t had much contact with the child, then his agreement may not be required but the Judge might require that he be told of the adoption.
In cases where a parent’s consent is required but it’s claimed that the parent abandoned the child or hasn’t kept in contact with the child, then legal notice must be given to that parents and the court will hold a hearing. During the hearing, the court will determine if there’s proof to show that the child has been abandoned and the parent’s consent is not required.
If the child is 14 years old or older, the child must also consent to the adoption.
If you need assistance serving adoption papers visit www.undisputedlegal.com or call (800) 774-6922 open Monday-Friday 8am-8pm. Representatives are ready to assist you.