Ten legal considerations for Texans considering adoption
This article is based on Texas law only. If you are adopting from another state or nation, you should seek appropriate legal counsel licensed by the jurisdiction from which you are adopting.
If you are considering adoption, you may feel excited, overwhelmed, and even concerned. While the excitement is expected and the paperwork is certainly daunting, your concern likely comes from the unknown. There are so many questions to answer when beginning the adoption process. International, domestic, or foster care? Attorney or private agency? Open, closed, or semi-open? And the question in the back of your mind – could the birth mother or father change their minds and take the child back?
Your concerns are valid and normal of any hopeful adoptive parent. Fortunately, Texas law is quite favorable when it comes to adoption, especially for the adoptive parents.
These ten legal considerations for Texans considering adoption are intended to put many of your worries at bay and allow you to focus on the journey toward growing your family through adoption.
Who Can Adopt
Single or married adults are eligible to adopt. If a married person files a petition for adoption, their spouse must join in the petition for adoption.
General Process of Adoption in Texas
Adoption is a two-step process, which includes: (1) termination of parental rights and (2) adoption of the child. An adoption of a child cannot occur without first terminating the parent-child relationship as to each living biological parent of the child.
Relinquishment of Birth Parents’ Rights — Timing
The birth parents cannot sign a relinquishment of parental rights until at least 48 hours after the birth of the child. A pre-birth contract or other written agreement for an adoption plan is unenforceable against a birth parent. For that first 48 hours, the birth parent has full legal authority to change his or her mind, choose to parent, and refuse to sign a relinquishment of parental rights. Understandably, the first 48 hours after the birth of the child can be nerve-racking for hopeful adoptive parents.
Relinquishment of Birth Parents’ Rights — Revocability
A written relinquishment of parental rights that designates the Department of Family and Protective Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. The birth parents cannot simply change their minds, and the relinquishment is used in the proceeding to terminate parental rights. The birth parents can appeal an order terminating parental rights, but only on the basis of fraud, duress, or coercion in the execution of the affidavit. Those grounds are difficult to prove. Accordingly, once the relinquishment is signed, the adoptive parents should feel a sense of security.
Termination of Birth Father’s Rights – Waiver of Interest
The birth father (or an alleged birth father) can sign an affidavit of waiver of interest in the child, which may be signed before the birth of the child. This waiver is irrevocable and can be used in the proceeding to terminate parental rights.
Termination of Birth Father’s Rights – Without Notice
The birth father’s parental rights may be terminated without notice to him if he fails to register with the state paternity registry before the 31st day after the child is born and does not commence a proceeding to adjudicate his paternity before the court has terminated his parental rights.
Although this termination procedure without notice is possible under the Texas Family Code, a judge has discretion to require that notice be given, if the father is known.
Six-Month Residence Before Adoption
The adopted child must reside with the proposed adoptive parent(s) for at least six months prior to finalizing the adoption. This allows time for the required post-placement evaluations, which are often performed by the adoption agency.
Inheritance Rights of an Adopted Child
An adopted child is the son or daughter to the adoptive parent(s) for all purposes, including inheritance. An adopted child may also inherit through the child’s biological parents; however, the biological parents may not inherit from or through the adopted child.
Contact with Birth Parents
Adoptive parents ultimately call the shots regarding contact with the birth parents, if any. Although open and semi-open adoption is very common now, especially in domestic adoption, open and semi-open adoption agreements are not enforceable by law. With that said, it is advisable to be honest with your agency about the amount of contact with which you are comfortable, and you should follow through accordingly.
Adults can be adopted. An adopted adult is the son or daughter of the adoptive parent for all purposes, including inheritance. However, the adopted adult may not inherit through the adult’s biological parents, and the biological parents may not inherit from or through an adopted adult.
Texas Law Favorable to Adopting
Texas law is designed to give assurances to prospective adoptive parents. Although we have all heard stories of unsuccessful adoptions or children returned to their biological parents, these scenarios are uncommon. The main area of risk occurs during the termination of parental rights. No matter how you adopt – internationally, domestically, or through the foster care system – this first step will likely be handled without much or any of your involvement. Most agencies include termination of the biological parents’ rights in the adoption fee package, and the Department of Family & Protective Services will terminate the biological parents’ rights for children in the foster care system.
You will likely have to retain legal counsel to perform the second step, finalizing the adoption. The adoption consists of submitting appropriate paperwork to the Court and attending a hearing in front of a judge. These hearings are short, relatively informal, and provide much cause for celebrating your new family!
Do your research and team up with experienced and respected adoption professionals to guide you through the process. The attorneys at Farrow-Gillespie & Heath are here to help.
Jessica Dunne is an associate attorney at Farrow-Gillespie & Heath. Jessica has substantial experience in civil litigation with a special interest in estate planning, probate, guardianships, and adoption. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship. Jessica’s professional memberships include the Dallas Bar Association, Dallas Association of Young Lawyers, Texas Aggie Bar Association, Attorneys Serving the Community and the State Bar of Texas.