Adopting a child should be one of the most joyful experiences a family can have, but in order for that adoption to go through quickly and without hassles a great deal of technical expertise is required. We are familiar with the intricacies of direct-placement adoptions, agency adoptions, and foster parent adoptions, as well as Indian Child Welfare Act cases, and we have the skills and knowledge necessary to ensure that your adoption is completed without delay.
Sometimes, it is not enough to just know the law surrounding adoption, you need to be able to litigate adoption matters. We have extensive experience litigating contested adoptions, interventions in dependency cases, and proceedings to terminate parental rights.
Our firm represents prospective adoptive parents in a wide range of circumstances, including step-parent adoptions, international adoption and interstate adoptions, relative adoption, and co-parent adoptions. We also provide representation to birth parents who are considering signing consents to permit an adoption to take place, and have represented adoption agencies in complex litigation.
Who Can Adopt in Arizona?
Any adult resident of Arizona who is married, single, or separated may adopt. Arizona law, however, restricts joint adoptions to married couples. A.R.S. § 8-103(A). Same-sex couples in Arizona are permitted to jointly adopt if they are married. This was true even before the U.S. Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Arizona also permits step parents to adopt their step children, provided the spouse consents and the other biological parent agrees to relinquish their parental rights, or had their parental rights terminated.
Who is Adoptable?
In order to petition an Arizona court for adoption the child must be present in Arizona when the adoption petition is filed. A.R.S. § 8-102. The petition must also be filed in the county where prospective adoptive parent resides or where child is a ward if he or she is a dependent child. A child must also be under the age 18 when the Petition is filed.
Arizona also has provisions for adult adoptions that are governed by A.R.S. § 14-8101. In order to file a petition to adopt another adult the petition must be filed in the county where either person lives and the adoptee must be under 22 years of age or a statutorily-defined relative.
Who Must Consent to the Adoption?
In Arizona, in order to file for adoption there must be consent from:
- Legal Father
- Married to Mother at conception or during pregnancy unless paternity is established by someone else
- Adopted the child
- Paternity is established
- Child over age 12
- Guardian of the child and/or adult parent
- Agency/Division if applicable
Consent, however, is not required from potential fathers who fail to file and serve a paternity complaint on the biological mother within 30 days of receiving a notice of the adoption in the manner outlined in A.R.S. § 8-106(G) & (I). The application of this notice statute is extremely stringent and if you have any questions about a notice of potential adoption it is essential that you immediately speak to an attorney.
Likewise, consent is not required if a parent's parental rights have been terminated.
Arizona's Putative Father Registry
Arizona also has a putative father registry. See A.R.S. § 8-106.01. There has been significant litigation concerning the applicability of this statute over the last several years in cases that have involved a birth mother's failure to disclose to the adoptive families the identity of the birth father. See for example, the Arizona Supreme Court's cases, David C. v. Alexis S., which was decided on August 2, 2016.
Regardless, this much can be said about the Arizona putative father registry. A person who is seeking paternity, who wants to receive notice of the adoption proceedings, and who is the father or claims to be the father of a child should immediately file notice of a claim of paternity. The notice of a claim of paternity may be filed before the birth of the child but must be filed within 30 days after the birth of the child. A putative father's failure to file with putative father registry within 30 days is a basis to terminate parental rights pursuant to A.R.S. § 8-833(B)(6).
What is an Open Adoption?
Adoption professionals have increasingly begun to recognize the benefits of open adoptions. There is a broad spectrum of open adoption agreements and the concept of an “Open Adoption” varies greatly from family to family. In Arizona, our statutes provide for the formalization of a post-adoption contact agreement that is filed with the Court. Specifically, A.R.S. § 8-116.01 provides that “[t]he parties … may enter into an agreement regarding communication with a child adoptee, the adoptive parents and a birth parent.” These agreements must be in writing and approved by the Court. It is also important for everyone to understand that “the adoptive parent may terminate contact between the birth parent and the adoptive child at any time if the adoptive parent believes that this contact is not in the child's best interests.” Even more important is that the birth parents and the adoptive parents understand that the birth parents' “failure to comply with an agreement … is not grounds for setting aside an adoption[.]” This means that even if the adoptive parents fail to follow the terms of the post-adoption contact agreement, the adoption will remain valid.
Can Adoptive Parents Help Pay Birth Parent Expenses?
Yes. According to A.R.S. § 8-114, “the court may approve any monies paid to a parent of a child placed for adoption …. for reasonable and necessary expenses incurred in connection with the adoption.” These expenses may include costs for medical and hospital care and examinations for the mother and child, counseling fees, legal fees, agency fees, living expenses and any other costs the court finds reasonable and necessary. All living expenses over $1,000 must be approved by the Court.
What is the Indian Child Welfare Act (ICWA)?
The Indian Child Welfare Act is a body of Federal laws that govern state proceedings involving the custody of Indian children. According to 25 USC § 1903(4), “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Unless a child meets these requirements, ICWA does not apply.
ICWA requires that in involuntary termination actions the moving party prove that the State has provided active efforts to prevent the break-up of the Indian Family. There also must be proof presented beyond a reasonable doubt, with testimony by a qualified expert, that continued custody by the Indian parent is likely to result in serious emotional or physical damage to the child. Finally, when applicable, ICWA includes preferences for placement with extended family, other tribal members, or other Indian families.
There have been several important cases involving ICWA adoptions during the last few years. The U.S. Supreme Court's 2013 Baby Veronica case is certainly the most significant of these cases. The Bureau of Indian Affairs also issued new Guidelines on February 25, 2015 addressing notice to Indian tribes in voluntary and involuntary adoption proceedings involving Indian children. See Section E(1)(b), requiring agencies and courts to provide Indian tribes notice of voluntary proceedings. However, despite these BIA Guidelines, many Courts found these guidelines were not binding and notice was not required to the Indian tribes in voluntary adoption proceedings that involve tribal members who do not reside on a reservation.
New federal ICWA regulations were approved and became effective on December 14, 2016. These new regulations seek to resolve some of the conflicts between ICWA, the case law, and the BIA Guidelines. If your adoption matter may involve an Indian child it is critical that you speak with an adoption attorney to ensure proper notice is given in cases where such notice is required.
What is the Interstate Compact on The Placement of Children (ICPC)?
The ICPC is a statutory agreement between states, similar to a treaty. It seeks to ensure safety of children when placed with out-of-state families. The sending state will want to make sure that the child is traveling to a state that is able to monitor the child's well-being pending an adoption.
ICPC approval is necessary for intra-state adoptions. This ICPC process will require an attorney in Arizona as well as the other state to ensure the correct paperwork is completed and to prevent the ICPC from becoming a roadblock to finalizing the adoption.
Alternatives to Adoption
As attorneys who are familiar with the juvenile and family courts, we recognize that adoption is not always the best solution for establishing legal custody for our clients. We will often discuss the possibilities of guardianships, family law custody orders, or private dependency actions. Please contact us to discuss which options will work best for the individual situation faced by you and your family.