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Adoption Frequently Asked Questions

Frequently Asked Questions in Adoption Law

 

Outlined below on this page are our answers to many of the most commonly asked questions concerning adoption law. 
 

Adoption Law

Who can adopt a child in Arizona?

Who is adoptable?

Who must be certified to adopt?

What is an Adoption Certification?

What is an Adoption Agency?

Can you adopt without an adoption agency?

What is an Open Adoption?

Who must consent to the adoption?

When can consents to adoption be signed in Arizona?

Is a birth parent able to revoke his or her consent to the adoption?

Can adoptive parents help pay birth mother living expenses?

What is the role of birth fathers with established legal rights?

What is the role of un-wed birth fathers in adoptions?

What notice do you need to give to un-wed birth fathers in Arizona?

What if the Birth Father is unknown?

What is Arizona's Putative Father Registry?

What is the Indian Child Welfare Act (ICWA)?

What is the Interstate Compact on The Placement of Children (ICPC)?

What is the Federal Adoption Tax Credit?

 

LGBT Adoption

What was the Obergefell v. Hodges case about and why was this decision revolutionary?

Can same-sex married couples jointly adopt in Arizona?

Will Arizona allow both of our names to be listed on our child's birth certificate?

What is a “Stepparent Adoption” and can we do that in Arizona?

What is a “Joint Adoption” and can we do that in Arizona?

What is a “Second Parent Adoption” and can we do that in Arizona?

What challenges do LGBT Families face in fostering children?

 

Adult Adoption

What is an Adult Adoption?

 

Alternatives to Adoption

Are there alternatives to adoption that protect children?

 

Who Can Adopt a Child in Arizona?

An individual or married couple may adopt a child in Arizona, and a step-parent may adopt their spouse's child if the spouse is the child's only legal parent. This applies equally same-sex couples. 

The primary restriction on two parties adopting a child together is that they must be married, meaning that an unmarried couple may not adopt a child jointly. 

Relatives, step-parents, and foster parents frequently adopt, as well as individuals and couples through either a direct placement adoption or working with private adoption agencies. 

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 Be Certified to Adopt?

Unless you are a close relative, a step parent, or a licensed foster parent seeking to adopt a child placed with you by the Department of Child Safety, you must be certified to adopt before filing an adoption petition. See A.R.S. § 8-105(A)

If you are not certified, and not exempt, you must seek temporary custody within five days of placement. See A.R.S. § 8-108. Consult an attorney immediately if you have any questions about whether or not you need to petition the court for an order granting you temporary custody of a child you wish to adopt. The failure to comply with the certification statutes may otherwise jeopardize your ability to adopt.

What is an Adoption Certification?

Before an individual who is not a blood relative, step-parent, or current foster parent approved by the Department, may adopt a child, a certification study must be conducted by an officer of the court, an adoption agency, or an agency contracted by the Arizona Department of Economic Security. Although they do not need to undergo a full home study, blood relatives will still need to be obtain fingerprint clearance cards and pass a background check before adopting.

The purpose of home study is to determine whether a prospective adoptive parent is a fit and proper person to adopt a child. The home study will include:

  1. A complete social history.
  2. The financial condition of the applicant.
  3. The moral fitness of the applicant.
  4. The religious background of the applicant.
  5. The physical and mental health condition of the applicant. This will require a current written statement by a physician or nurse practitioner regarding the applicant's health.
  6. Any court action for or adjudication of child abuse, abandonment of children, dependency or termination of parent-child relationship in which the applicant had control, care or custody of the child who was the subject of the action.
  7. Whether the person or persons wish to be placed on the central registry established in subsection M of this section. And,
  8. All other facts bearing on the issue of the fitness of the prospective adoptive parents that the court, agency or department may deem relevant.

The certification study, along with the recommendation of the agency preparing the study, is filed with the court in the county in which the adoptive parents reside. If the court certifies the prospective adoptive parents as acceptable to adopt, that certification is valid for eighteen months.  If not adoption petition has been filed within that time, certification can be extended for one-year periods of time if the court determines that there have been no material changes in the circumstances that would adversely affect the acceptability of the prospective parents to adopt.

What is an Adoption Agency?

An adoption agency is a licensed entity (e.g., state department, non-profit organization, or for-profit corporation) that is authorized under the laws of the particular state or foreign country to preform adoption related services.

In Arizona, the laws governing adoption agencies are set out in A.R.S. § 8-130(A).  Arizona adoption agencies are permitted to match adoptive families with birth parents.  They are permitted to submit to the court certification and adoption social studies.  They are responsible for the assembly of records, applying for Arizona Adoption Subsidy, when possible, providing for birth parent counseling, helping arrange for the payment of appropriate birth parent living expenses. Adoption agencies may also accept consents from birth parents.  The adoption agency will work with an attorney to file the legal paperwork for approval of living expenses paid to the birth parent and to finalize the adoption in court.

In an agency adoption, the birth parents will relinquish their parental rights to the licensed adoption agency.  In this way, the agency becomes the legal guardian of the child, has the right to place the child for adoption, and the obligation to consent to the adoption.  However, many adoption agencies allow the birth parents to select the adoptive parents.  Often the birth parents' consents to adoption and relinquishments of their rights to the adoption agency specify a specific adoptive placement.

Can You Adopt Without an Adoption Agency?

In Arizona, a private attorney may work with already matched families or even present to birth parents the profiles of adoptive families that have been certified to adopt.  These adoptions are called “direct placement adoptions” or “private adoptions.”  In these adoptions, it is essential that the birth parents and the adoptive family have different lawyers.

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.

Who Must Consent to the Adoption?

In Arizona, in order to file for adoption there must be consent from:

  • Mother
  • Legal Father
    • Married to Mother at conception or during pregnancy unless paternity is established by someone else
    • Adopted the child
    • Paternity is established by court order or birth certificate
  • 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.

When Can Consents to Adoption Be Signed in Arizona?

Arizona requires a 72-hour waiting period after birth before the consent may be executed by either parent.  Many other states also require 72 hours, but in other states the waiting period can vary dramatically.  For instance, it is 15 days in Rhode Island, but only 24 hours in Utah.  In 16 states, a birth parent may consent any time after birth of the child.

Is a Birth Parent Able to Revoke His or Her Consent to the Adoption?

Under Arizona law, a parent's consents irrevocable unless obtained by fraud, duress, or undue influence (A.R.S. § 8-106 and A.R.S. § 8-107). However, the Indian Child Welfare Act allows a parent to withdraw consent prior to the entry of a final TPR or adoption order

Can Adoptive Parents Help Pay Birth Mother Living Expenses?

Yes, the payment of limited and reasonable birth parent expenses is permitted in Arizona. 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 Role of Birth Fathers with Established Legal Rights?

A legal father is a man who was married to the biological mother of a child at the time of conception or between the time of conception and the child's birth.  A.R.S. §§ 814 & 8-106(A)(2)(a).  A man is also the legal father if he has established his paternity pursuant to Title 25, or has previously adopted the child.  Id. at (2)(b)&(c). A man is the presumptive legal father of a child born up until nine months following the dissolution of the marriage.  A.R.S. §§ 812 & 814. A legal or presumed father must sign the same consent documentation to an adoption as the biological mother to affect a voluntary termination of his parental rights, regardless of his actual paternity.

What Is the Role of Un-Wed Birth Fathers in Adoptions?

Biological but unwed fathers had no recognized rights until the 1970's. Stanley v. Illinois, 405 U.S. 645 (1972).  In many states, biological unwed fathers still do not have a presumptive right to consent or veto an adoption, but merely a constitutional right to notice an opportunity to be heard.  In some cases, the unwed biological father may have a constitutional right to consent or veto where the birth father has “earned” that right by establishing paternity following the child's birth, or developing a significant parent-child relationship with the child. Lehr v. Robertson, 463 U.S. 248 (1983).  Thus, depending upon the law of the state where the adoptive placement occurred, the role of the biological father in the adoptive process may vary dramatically.

What Notice Do You Need to Give To Un-Wed Birth Fathers in Arizona?

Until 1994, Arizona treated unwed biological fathers in the same fashion as biological mothers.  The consent of both biological parents was uniformly required, absent incompetence, a prior termination of parental rights, or a prior consent to an agency or the Department of Child Safety (formerly, Child Protective Services).  In July 1994, the definition of “parent” was changed to distinguish a legal father, who is a presumed parent whose consent to adoption is required, from unwed biological fathers. See above discussion regarding, A.R.S. §§ 401, 812 & 814. Currently, an unwed biological father who takes no action to preserve his rights may forfeit his status as a parent, and therefore the necessity to obtain his consent to an adoption.  A.R.S. § 8-106.

Under Arizona law, a biological mother planning an adoption must execute a notarized affidavit, which is filed with the court, listing all potential fathers of the child. A.R.S. § 8-106(F). A Notice to Birth Father must be served on each potential father informing him that an adoption is planned, and of his right to consent or withhold consent to the adoption.  More importantly, the potential father is informed of his responsibility to file a paternity action and serve it on the birth mother within thirty days of being served with this notice if he wishes to preserve his parental status.  The potential father is advised of his right to seek custody, and his responsibility to begin to provide financial support for the child if paternity is established.  A.R.S. § 8-106.

This Notice to Birth Father may be served upon the potential unwed biological father at any time during the pregnancy.  Thus, if an unwed biological father is served with this notice early in the pregnancy, and fails to take action to establish his paternity, he forfeits his status as a parent prior to the birth of the child.  A.R.S. § 8-106. No separate termination of his parental rights is required.  His rights terminate upon finalization of our adoption. Arizona Courts have strictly applied this 30-day period of time based on the case law established by Marco C. v. Sean C., 218 Ariz. 216 (App. Div. 2, 2008) and David C. v. Alexis S., 240 Ariz. 53 (2016).

What if the Birth Father is Unknown?

A birth mother may report she does not know the identity of the birth father. This presents a unique challenge because an adoption attorney cannot be certain that the birth mother is being honest and providing full disclosure. Ultimately, the adoption attorney must either decline representation, if he or she suspects fraud, or rely on the statutory procedures afforded to unknown birth fathers to ensure their due process rights to notice of the adoption.  The failure of a birth mother to disclose the birth father's identity increases the legal risk surrounding the adoption, including the risk of significant litigation and a disruption of the adoption.  Ethical adoption attorneys should take their obligation to provide the best possible notice to an unwed father very seriously.

If the birth father is either unknown, or named but cannot be located after a national search, then the Notice to Birth Father is served by publication. Publication is made pursuant to the Arizona Rules of Civil Procedure and the Rules of Procedure for the Juvenile Court.  Publication should be made in the county where the adoption will finalize, as well as the county where the birth father was last known to reside (if he no longer can be found), and depending on the circumstances, sometimes in the county of conception.  Best practice is to file a motion either requesting the Court's permission to publish or confirming the decision to publish the Notice to Birth Father. This approach eliminates the possibility of the Court later questioning whether adequate efforts were made to personally serve the birth father, because the motion will cite the efforts made to find him, or detail why the why father cannot be identified.

What is Arizona's Putative Father Registry?

Arizona's putative father registry provides an opportunity for a potential father to protect his parental rights if the birth mother either intentionally failed to identify him, or is otherwise unable to identify him. A.R.S. § 8-106.01. The Arizona Legislature established the putative father registry under the auspices of the Department of Health Services.  A person who is, or claims to be, the father of the child can file a notice of claim of his paternity at any time either before or up to 30 days following the birth of the child.

An unwed father who is served with an actual Notice to Birth Father by the biological mother only has 30 days to file and serve a paternity action.  A.R.S. § 8-106(G). The registry is intended to be for persons who are not otherwise notified.  This statute places an obligation on a man who has engaged in sexual relationships with a woman to follow up if he is concerned that the union might have resulted in a child, and the child may be placed for adoption.

The registry is searched after 30 days following the birth of the child to see if a father has registered.  Should an unwed father not served with the Notice to Birth Father file with the registry, he will then receive the Notice to Birth Father directing him to file and serve a paternity action within 30 days. 

If the putative father fails to file and serve a paternity action within the appropriate time, he is thereafter barred from bringing or maintaining any action to assert an interest in the child, unless he proves, by clear and convincing evidence, that it was impossible for him to file a claim of paternity within the appropriate time, and that he filed and served a notice of claim of paternity within 30 days after it became possible for him to file.  Lack of knowledge of the pregnancy is not an acceptable reason for failure to file with the putative father registry.  The failure to file with the putative father registry within 30 days of the child's birth is also an enumerated ground for the termination of parental rights pursuant to A.R.S. § 8-533(B)(6).

In adoption proceedings, the petitioner(s) must file with the court a “Certificate of No File Found” from the Department of Health Services stating that the registry has been searched and that no filing has been found pertaining to the father of the child.  Pending case law may impact the above analysis.

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. The most important of these recent cases is the Arizona Supreme Court's opinion in Frank R. v. Mother Goose Adoptions, which was decided on October 2, 2017, and addressed the use of the putative father registry in a severance case involving an un-wed, out-of-state birth father.  Notably, the Mother Goose opinion was issued just one year after the Court issued an opinion regarding the use of the putative father registry in adoption cases.  See David C. v. Alexis S., which was decided on August 2, 2016. 

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.

What is the Federal Adoption Tax Credit?

For many families, the cost of adopting a child is extremely difficult for them.  Luckily, some adoption costs can be offset by the Federal Adoption Tax Credit, which is non-refundable, for all qualifying adoption expenses.  In January 2013, this adoption tax credit was made permanent.  The adoption credit is not refundable, which means that only those individuals with tax liability will benefit from it.

As of 2017, the maximum amount available for the adoption tax credit is $13,570 per child.  This amount continues to grow each year with the cost of living. The Adoption Tax Credit may be carried forward for up to five (5) years.

Families who experience a disrupted adoption (a situation that did not end in a completed adoption) may also benefit from the adoption tax credit.  However, families must wait one year before filing for the credit. 

Please refer to a tax processional to see if your family is eligible for the Federal Adoption Tax Credit.

What was Obergefell v. Hodges and why was this Decision revolutionary?

In 2015, same-sex marriage became legal throughout the United States following the Supreme Court's decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015).[1] Obergefell involved several named plaintiffs, each with a compelling personal story.  The Court cited to three of the plaintiffs in its Ruling:

  • James Obergefell was in a committed relationship with John Arthur for over 20 years. In 2011, John was diagnosed with ALS. James and John flew to Maryland to get married, and conducted the ceremony on a medical transport plane at BWI airport. John subsequently died and Ohio refused to name James as the spouse on John's death Certificate.
  • April DeBoer and Jayne Rowse held a commitment ceremony in 2007. They subsequently adopted three special needs children in Michigan. Under Michigan law, however, only allowed opposite-sex, married couples to adopt.  As a result, each child only had one legal parent.  The non-recognized parent had no rights to obtain medication care, work with the schools, or act as guardian if something were to happen to the legal parent.
  • Ijpe DeKoe and Thomas Kostura were married in New York in 2011 before Ijpe deployed to Afghanistan for almost a year. When Ijpe returned to the U.S. the couple settled down in Tennessee, which does not recognize their marriage. 

Obergefell's 5 to 4 decision held that the right to marry is protected under the Due Process Clause as a fundamental liberty interest.  It went on to hold that same-sex couples cannot be deprived of this fundamental right under the Equal Protection Clause.   It held that state-level bans on same-sex marriage are unconstitutional and that same-sex married couples should be constitutionally accorded the same recognition as opposite-sex couples at all levels of government. The Court ordered that states issue marriage licenses to same-sex couples, and recognize as valid marriages, those performed in other states.

In authoring the majority opinion, Justice Anthony Kennedy wrote, “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death [.…] Their plea is that they do respect [marriage], respect it so deeply that they seek to find its fulfillment for themselves [….] They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.” Obergefell, p. 2608.

After Obergefell, all married couples – same sex or otherwise – are afforded the “Constellation of Benefits” that come with marriage. These include, but are not limited to:

  • Adoption
  • Child custody, support, and visitation rights
  • Health insurance/Hospital access
  • Inheritance and property rights
  • Medical decision-making authority
  • Tax benefits
  • And many, many more

Can Same-Sex Married Couples Jointly Adopt in Arizona?

Adoption by married LGBT Families is now legal in all states, following Campaign for Southern Equality, et al. v. Mississippi Department of Human Services, et al., 175 F.Supp.3d 691 (S.D. Miss. 2016). 

However, in Arizona, like in many states, there is still outdated legislation. Arizona Revised Statute § 8-103 states that, “A husband and wife may jointly adopt children.”  In practice, Arizona courts have finalized joint adoptions and step-parent adoptions by same-sex parents.

When a legally married couple have a child, they may both presumed to be the legal parents of a child.  A.R.S. § 25-814(A)(1); see also A.R.S. § 25-501; and the Arizona Supreme Court's opinion in McLaughlin v. Jones, decided on September 19, 2017.

Regardless of presumptions, we encourage LBGT Families to establish Legal Parent status through adoption.  Adoption is both symbolically important to the families and key to avoiding risk, litigation, and the traumatic loss of a parent by a child.

Will Arizona Allow Both of Our Names To Be Listed on Our Child's Birth Certificate?

The Arizona Department of Vital Records will place both parents' names on the child's birth certificate, listing them as “Parent” and “Parent”.  In fact, following the Supreme Court's decisions in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) and, more recently, Smith v. Pavan, 137 S. Ct. 2075 (2017), it would be a violation of a parent's constitutionally recognized rights if a State were to refuse to place his or her name on the child's birth certificate because the parents were in a same-sex marriage.

What is a “Stepparent Adoption” and Can We Do that in Arizona?

Stepparent adoptions may be faster and less expensive than joint adoptions for married LGBT parents.  The reason for this is that Arizona, like many other states, has laws with simplified procedures for step-parent adoptions (i.e., limited certification requirements). A.R.S. §§ 8-105 & 8-112(D).  In Arizona, there is also a requirement for step-parent adoptions that the spouses have been married for at least one year, or, in the alternative, obtain an adoption social study.  In practice, however, courts have often waived this requirement, especially in the case where the adoptive parents have been in long-term relationships and would have married if it had been possible.  In fact, unlike Arizona's statute for joint adoptions, Arizona's step-parent adoption statute is gender neutral. Id.  This difference in wording resulted in Arizona courts granting step-parent adoptions, but not joint adoptions, immediately after 2014 when same-sex marriage became legal in Arizona.

What is a “Joint Adoption” and Can We Do that in Arizona?

Arizona law only provides for a married couple to jointly adopt.  A.R.S. § 8-103.  However, a few states, such as California and New York, allow an unmarried couple to jointly adopt.  There are no appellate cases in Arizona addressing whether Arizona is required to recognize joint adoptions under the Full Faith & Credit Clause.  The U.S. Supreme Court's opinion in V.L. v. E.L., 136 S.Ct. 1017 (2016), addressed below, suggests that Arizona will have to recognize legally preformed Joint Adoptions entered in other states.

What is a “Second Parent Adoption” and Can We Do that in Arizona?

Much like a step-parent adoption for married parents, in a second-parent adoption, the second parent is able to adopt a child without having to terminate the first parent's parental rights.  The purpose is to have two legal parents, even though the parents are unmarried.  It is also different from an unmarried joint adoption, because one parent is already the Legal Parent.

As with joint adoptions by unmarried couples, in the case of second parent adoptions by unmarried couples, there is the possibility that Arizona courts, under the Full Faith and Credit Clause, would be asked to uphold the validity of an adoption entered in another state. 

This issue arose in the case of V.L. v. E.L., 136 S.Ct. 1017 (2016). In that case, the same-sex partner of a biological mother petitioned for, and was granted, a second-parent adoption in Georgia.  The couple separated and the biological mother sought to prevent the adoption order from being enforced in Alabama where the parties resided.  The Supreme Court of Alabama ruled that Alabama did not have to recognize the adoption judgment, saying that the Georgia court misapplied Georgia law.

The Supreme Court of the United States reversed, finding that the Full Faith and Credit clause applied and Alabama had to recognize the adoption.  It wrote that the, “[Full Faith and Credit Clause] requires each State to recognize and give effect to valid judgments rendered by the courts of its sister States.  It serves ‘to alter the status of the several states as independent foreign sovereignties […] and to make them integral parts of a single nation.'” Id. at p. 1020. 

What Challenges Do LGBT Families Face in Fostering Children?

On April 22, 2015, Arizona Governor Doug Ducey instructed the Department of Child Safety to permit married LGBT couples to adopt and foster children together.  “With 17,000 children under the state's care, we need more adoption in Arizona, not less. That's why I feel strongly – as I have said many times before – that all loving families should be able to serve as foster parents and adopt,” Governor Ducey said in his statement. “Practices have been brought to my attention that do not match those priorities, therefore, I'm instructing the Arizona Department of Child Safety to immediately ensure that all legally married couples in Arizona are able to jointly serve as foster parents and adopt. All children deserve a loving home, and under my watch, I'm committed to making sure government encourages that.”

Since Governor Ducey's proclamation in 2015, the foster-care crisis in the U.S. has only grown worse.  At present, approximately 500,000 children in foster care across the U.S., and 20,000 of those children live in Arizona.

Arizona's statutes have not been updated to reflect that same-sex marriage is legal in Arizona.  In fact, A.R.S. § 8-103(D), states that if all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.

Likewise, Arizona's statute addressing the rights of foster parents, A.R.S. Section 8-530(A)(13), does not even consider sexual orientation (Foster parents have the right, “To not be discriminated against on the basis of religion, race, color, creed, sex, national origin, age or physical disability.”).  Additionally, when placement decisions arise for foster children, the Department of Child Safety Manual, Chapter 5, Placement Matching Principles, gives the individual DCS case worker the authority to consider, among other factors:  

  • A family's cultural/religious beliefs
  • Caregivers' lifestyle
  • Parents/views & wishes

Once the foster parent(s) are licensed, DCS has a non-discrimination policy for the placement of children into foster homes.  But the Foster Licensing Agencies have the discretion to turn away LGBT Families if doing so conflicts with their religious beliefs. See A.R.S. § 41-1493.01 (“[The] free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.”).

The take-home message for LGBT Foster Parents is that not all foster-licensing agencies are equal. We encourage you to seek licensing agencies that welcome all individuals from the LGBT community, such as Devereux Arizona and the Arizona Children's Association.  In fact, Devereux Arizona is the only Agency to earn the Human Rights Campaign Foundation, “All Children, All Families” seal of excellence for LGBT foster care.

What is an Adult Adoption?

Generally, only a child 18 years old and under, or a foreign-born person under the age of 21, can be adopted.  In 1990, the Arizona legislature provided for adult adoption in limited circumstances.  An adult person may now adopt another adult person who is a stepchild, niece, nephew, cousin or grandchild of the adopting person.  A foster parent can adopt an adult placed in his or her care at the time the adult was a juvenile, so long as a continuous familiar relationship with that child has existed for five or more years.  The statute was later amended to permit the adult adoption of any person between the ages of 18 and 21, regardless of a pre-existing relationship.

An adult adoption must be filed in the probate court, which has a number of prerequisites that must be complied with before the petition to adopt will be processed.  An adult adoption requires an execution of a written agreement of adoption by the parties involved.  Notice must be given to all affected parties; however, the consent of a biological parent or parents of the person to be adopted is not required.  Affected persons are only provided with the opportunity to object to the proposed adoption.  This notification may sometimes be waived if deemed appropriate by the Court.

A report must be submitted by a person designated by the court which concludes that the welfare, competency and best interest of both the parties and the public will be served by the adult adoption.

Are There Alternatives to Adoption that Protect Children?

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.

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