Commentary: Avoid Pitfalls of Adoption through due diligence
By Jennifer Williams, JBA Adoption Law Committee chair
Practitioners of adoption law frequently are asked questions about a process that often is misunderstood.
“How much does it cost to buy a baby?” and “How much will you pay for my baby?” are common inquiries.
It is important to know the ethical issues and “red flags” impacting adoption in Florida while considering Florida law and some best practices.
Who’s your daddy?
Dealing with the fathers (yes, plural sometimes) can be more challenging than anticipated.
In the case of a legal father (a man to whom the mother is married at conception, birth or both), his consent to the adoption is required and he must be afforded due process. Even if he is not the biological father of the child, he must be addressed per the provisions of Chapter 63.
Additionally, a birth mother may name one or more potential biological fathers. While these gents’ consent to the adoption is not automatically required, there are steps that must be followed to address each one before the adoption occurs.
The statute of repose (when a challenge may be raised) is one year from the date the court terminates parents’ rights or finds that their consent is not required.
Due diligence must be done as to legal and birth fathers. Best practice is to address them as early as possible. Failure to do so may put your adoption plan at risk.
The law allows adoptive parents to assist a birth mother with reasonable and necessary living and medical expenses during pregnancy and up to six weeks after birth.
Chapter 63 gives some guidance and limitations (e.g., requiring court approval), but there are many interpretations and opinions as to best practices when it comes to birth mother expenses. Housing, transportation, food, personal hygiene items, maternity clothing and counseling are among the common expenses.
But does purchasing a car constitute a reasonable and necessary transportation expense? Is it ethical to tally up a birth mother’s total “need” through six weeks postpartum and give her that amount in cash after she signs her consents to the adoption?
Opinions vary, but a resounding no to both.
Best practice is to pay providers directly: rent to the landlord and bus passes or payment to Uber for necessary transportation.
This issue is compounded by the fact that birth mothers cannot consent to adoption until 48 hours after birth or discharge from the hospital. Until they sign consents, they have complete freedom to change their minds regardless of expenses paid and without having to reimburse the adoptive family, absent proof of adoption deception, which is hard to prove.
Practitioners must be cognizant of the law and best practices. Evaluate a birth mother’s desire for money against her desire to place her child for adoption. Balance your clients’ urge to make the birth mother happy with what is ethical and reasonable.
Adoptive parents, vet your attorney/agency carefully to ensure your adoption is not put in jeopardy by unethical acts that are tantamount to buying a child, or by a birth mother whose intent to place her child for adoption is a front for the purpose of financial gain.
Adoption law is an area in which practitioners would be prudent to tread very carefully and with the support and guidance of experienced mentors.
Those considering adoption as a means to expand their families must do their due diligence before selecting an attorney or adoption agency to assist them to ensure they are engaging a practitioner or entity whose work will satisfy the ethical guidelines that, if followed, minimize the risk of emotional and financial loss that is inherent to the adoption process.
When it comes to adoption, it is not necessary to assume greater risk to enjoy the most precious reward: bringing a new life home to his or her forever family.
Jennifer Williams is an associate with Elizabeth R. Ondriezek PA, focusing on adoption and family law.