Checklist · Family Law

Completing an Adoption and Handling Consent and Notice: A Practical Checklist

42 U.S.C. § 675

Type
Checklist
Jurisdiction
National
Date
2024-07-26
Topic
Family Law

This checklist walks an adoption from intake to sealed file in the order the work must actually happen. Phase one is screening — tribal heritage, the identity of every possible father, and the states whose law may govern — because each of these can stop a placement and each is cheapest to resolve on day one. Phase two covers consent: who must give it, when it may be taken, how it must be executed, and how to document the advisement so that a later revocation claim fails. Phase three covers the putative father registry search and the diligent search log that a reviewing court will read years later. Later phases cover involuntary termination, ICWA compliance, interstate compact approval, home study preparation, post-placement supervision, the finalization record, the expense accounting, and the subsidy agreement that must be signed before the decree. A closing section lists the mistakes that undo completed adoptions.

Completing an Adoption and Handling Consent and Notice: A Practical Checklist

Family Law > Adoption | Published 26 July 2024 - Updated 6 November 2024 | UpLaw - uplaw.us

⚠ Three things in Phase 1 can invalidate an adoption years after finalization: an unnotified father, an unscreened tribal connection, and a consent taken an hour early. Do Phase 1 first, completely, every time.

Use with Adoption: A Comprehensive Guide to Consent, Termination of Parental Rights, Home Studies, and Finalization and The Adoption Process Toolkit.

Phase 1 — Intake screening (day one, in writing)

☐ ⭐ Ask both birth parents about tribal heritage or ancestry — and ask specifically about all four grandparents and the great-grandparents, not just the parent. Record the answer in writing, signed.

☐ ⭐ Identify every man who could be the biological father. Ask directly, ask about the relevant window, and ask again separately. ⚠ "I don't know his last name" is not the end of the inquiry — it is the beginning of the diligent search.

☐ Determine which state's law governs the consent. Place of birth, place of residence, place of execution, place of the petition. ⭐ Revocation rules vary more than any other feature of adoption law, and this determination is often the single most consequential decision in the file.

☐ Determine whether the placement crosses state lines — if so, Phase 8 applies before the child travels.

☐ Identify the route: agency · private placement · foster care · stepparent · relative · second parent · adult · intercountry.

☐ Confirm the birth parent has independent counsel, or arrange it. ⚠ The adoptive family's lawyer cannot advise the birth parent.

☐ Confirm whether the birth mother is married — a husband is a presumed father whose consent or termination is required even where he is not the biological father.

☐ Check military status for any father, for Servicemembers Civil Relief Act default protections.

☐ Check incarceration status — an incarcerated father must still be served, and prisons have service procedures.

Phase 2 — Consent

☐ Confirm the post-birth waiting period and ⭐ calendar it to the hour. ⚠ A consent executed one hour early is void in most states, and void is not curable.

☐ Confirm the execution requirements:

  • ☐ Written, on the statutory form or substantially compliant
  • ☐ Before a judge, where required — ⚠ a hospital-room notarization is worth nothing in those states
  • ☐ Notary and witnesses, per statute
  • ☐ Statutory advisement read aloud, with the revocation period stated
  • ☐ Independent counsel or counselor certificate
  • ☐ Certified interpreter where needed, on the record

☐ ⭐ Have the birth parent initial the revocation paragraph separately.

☐ Record or transcribe the advisement where permitted.

☐ Obtain consent from the child where the child is above the statutory age — commonly twelve or fourteen.

☐ Obtain agency or guardian consent where custody is held by one.

☐ File the consent within the statutory period.

☐ Diary the revocation deadline and confirm in writing when it passes.

☐ ⚠ Do not permit an adoptive family to believe a pre-birth agreement is binding. It is not, in nearly every state.

Phase 3 — Putative father registry and notice

☐ ⭐ Search the registry in every state where conception may have occurred, plus the state of birth and the mother's residence.

☐ Search at the statutorily specified time relative to the petition — ⚠ an early search is not a search.

☐ Obtain a certificate of search from each registry and file it.

☐ Serve everyone who registered.

☐ ⭐ Serve any known or named putative father whether or not he registered. ⚠ Notice given unnecessarily costs a filing fee. Notice omitted costs the adoption.

☐ Where the father is unidentified, run and document a diligent search:

  • ☐ Interview the birth mother, and her family and friends where permitted
  • ☐ Search public records, voter rolls, and property records
  • ☐ Check social media
  • ☐ Check incarceration and corrections databases
  • ☐ Check the Department of Defense manpower database for military status
  • ☐ Contact last known employers and addresses
  • ☐ ⭐ Log every step with a date. A court reviewing a collateral attack four years later reads the log.

☐ Move for alternative service — publication or posting — only after the search is documented.

☐ Obtain a default or a finding of abandonment on the record.

Phase 4 — Involuntary termination of parental rights

☐ Identify the statutory ground — abandonment · failure to support · failure to communicate · neglect · severe abuse · chronic substance abuse or mental illness · long-term incarceration · prior involuntary termination · specified felony convictions.

☐ Confirm the statutory period has run for the conduct-based grounds, and that it is measured correctly.

☐ ⚠ Plead and prove both findings — the ground and best interests. Santosky v. Kramer, 455 U.S. 745, requires clear and convincing evidence on the ground.

☐ Confirm appointed counsel for the parent. ⭐ Most states provide it by statute even though Lassiter v. Department of Social Services, 452 U.S. 18, did not require it categorically.

☐ Assemble the evidence:

  • ☐ Support payment history — the state disbursement unit record
  • ☐ Contact log — visits, calls, letters, gifts, with dates
  • ☐ ⚠ Address token contact expressly — most statutes disregard it
  • ☐ Case plan and compliance record, in a dependency case
  • ☐ Service referrals made and results
  • ☐ Criminal records where relevant
  • ☐ Medical and psychological evaluations

☐ Anticipate the defenses: the custodial parent obstructed contact · inability rather than unwillingness to pay · incarceration alone · a bond that makes termination contrary to best interests.

☐ Confirm the order is final and the appeal period has run before finalizing the adoption. ⚠ M. L. B. v. S. L. J., 519 U.S. 102, guarantees an indigent parent appellate review — do not treat an unappealed judgment as final until the time expires.

☐ Where the child is in foster care, check the 42 U.S.C. § 675 timelines and the 42 U.S.C. § 671 state plan requirements.

Phase 5 — Indian Child Welfare Act compliance

☐ ⭐ If there is any indication of tribal ancestry, treat ICWA as applying until a tribe says otherwise in writing.

☐ Determine the child's status under 25 U.S.C. § 1903 — membership or eligibility plus a parent's membership. ⚠ The tribe decides. The court does not, and neither do you.

☐ Notify every plausibly relevant tribe by registered mail, return receipt requested, under 25 U.S.C. § 1912, and the Secretary of the Interior where the tribe cannot be identified.

☐ ⚠ Hold no proceeding until at least ten days after receipt.

☐ File the return receipts and the tribal responses.

☐ Where ICWA applies:

  • ☐ ⚠ No consent within ten days after birth — 25 U.S.C. § 1913
  • ☐ Consent before a judge, with judicial certification of explanation and understanding
  • ☐ ⚠ Consent to adoption is withdrawable at any time before the final decree
  • ☐ Qualified expert witness testimony on the likelihood of serious emotional or physical damage
  • ☐ Beyond a reasonable doubt for termination
  • ☐ Active efforts, documented — not merely reasonable efforts
  • ☐ Placement preferences under 25 U.S.C. § 1915, or good cause findings for departing
  • ☐ Tribal right to intervene and to seek transfer under 25 U.S.C. § 1911

☐ ⭐ Read Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, to any client who wants to skip this phase — a three-year-old decree was vacated on domicile grounds.

☐ Note the limits of Adoptive Couple v. Baby Girl, 570 U.S. 637 — it narrowed the heightened standards for a never-custodial father, and left 25 U.S.C. § 1914 invalidation intact.

Phase 6 — Home study

☐ Select a licensed provider authorized in the state and, for intercountry cases, on the federal form.

☐ Assemble in advance:

  • ☐ Birth certificates, marriage certificate, divorce decrees
  • ☐ Three years of tax returns and recent pay records
  • ☐ Employment verification letters
  • ☐ Physician's statements for each adult
  • ☐ Insurance verification
  • ☐ Three to five references, at least one non-relative
  • ☐ Fingerprint appointments for every adult in the household
  • ☐ Child abuse registry clearances for every state of residence in the last five years — a 42 U.S.C. § 671 funding condition
  • ☐ Autobiographical statements
  • ☐ Pet vaccination records, where the agency asks
  • ☐ Well water test, where applicable

☐ Prepare the home: working smoke and carbon monoxide detectors · fire extinguisher · firearms locked and ammunition stored separately · medications and chemicals secured · adequate sleeping space · water safety barriers · a working phone.

☐ ⭐ Disclose everything at the first meeting — arrests, prior child protective contacts, prior denied applications, substance abuse history, mental health treatment. ⚠ Explained history is usually survivable; discovered history usually is not.

☐ Expect individual interviews. ⭐ Both partners must actually want this. The individual interview is where reluctance surfaces, and it should.

☐ ⚠ Know that 42 U.S.C. § 1996b prohibits denying or delaying placement based on race, color, or national origin in federally assisted programs. ICWA is a statutory exception grounded in political status.

☐ Complete required pre-service training hours.

Phase 7 — Placement

☐ Obtain the hospital plan in writing where the placement is at birth — who is in the delivery room, who holds the baby, who is discharged with the child, what the hospital's social work department requires.

☐ Obtain the child's medical records and complete social and medical history, including known family history. ⚠ Incomplete disclosure is the root of most wrongful adoption claims.

☐ Confirm insurance coverage begins at placement and that the child is added within the enrollment window.

☐ Obtain a Social Security number for the child.

☐ Execute a placement agreement describing the legal risk, the revocation period, and what happens if the consent is withdrawn.

☐ ⭐ Say the legal-risk part out loud to the adoptive family, in plain words, before they take the child home. A family that understands the risk survives a disruption. A family that was reassured does not.

Phase 8 — Interstate compact (before the child crosses a state line)

☐ ⚠ Do not move the child until the receiving state's compact administrator approves in writing. Violation is a misdemeanor in many states and grounds for the receiving state to refuse recognition.

☐ Assemble the packet: request form · child's social and medical history · birth parent information · home study · consents or legal risk statement · financial and medical coverage plan · sending state's authorization.

☐ Confirm any exemption with the compact office, not from the statutory list alone. ⚠ Parent, stepparent, grandparent, adult sibling, adult aunt or uncle, and guardian placements are generally exempt — "generally" is doing work.

☐ ⭐ Budget seven to twenty-one days in the sending state. Tell the family before they buy plane tickets. Bring a car seat, a pediatrician referral, and patience.

☐ Keep the approval letter in the finalization file.

Phase 9 — Post-placement supervision

☐ Confirm the required number and frequency of visits — commonly monthly for three to twelve months, waived or reduced for stepparent and relative adoptions.

☐ Keep the supervisor informed of moves, job changes, household changes, and medical events.

☐ Obtain each written report and confirm the recommendation before filing the petition.

☐ Enroll in post-adoption services where the state offers them. ⭐ Uptake is low because families do not know they exist.

Phase 10 — Finalization

☐ File the petition with jurisdictional allegations, the facts establishing the child is legally free, and the requested name change.

☐ Assemble the record:

  • ☐ All consents and relinquishments, revocation periods expired
  • ☐ All termination orders, final and beyond appeal
  • ☐ Registry search certificates
  • ☐ Proof of service and orders on defaults
  • ☐ Home study and post-placement reports
  • ☐ ICWA findings or compliance documentation
  • ☐ Compact approval
  • ☐ Expense accounting
  • ☐ Proposed decree

☐ ⚠ Complete the expense accounting honestly. States permit reimbursement of enumerated categories and criminalize payments beyond them. ⭐ Route every dollar through counsel or the agency. Never hand cash to anyone.

☐ ⭐ Sign the 42 U.S.C. § 673 adoption assistance agreement BEFORE the decree is entered. ⚠ Signing afterward is generally impossible, and the loss can be six figures over the child's minority.

☐ Ask whether the child meets the state's special-needs criteria — age, sibling group, identified medical or developmental condition — even if the child appears healthy.

☐ Attend the hearing. Bring the child, the family, and a camera; most courts allow photographs on this one day.

☐ Order five certified copies of the decree. ⭐ Institutions will ask for years.

☐ Apply for the amended birth certificate.

☐ File the 26 U.S.C. § 23 adoption credit for the correct tax year, and check whether an employer adoption benefit applies. ⚠ The same expense cannot be both excluded and credited.

Phase 11 — After the decree

☐ Update wills, trusts, and beneficiary designations. See Building and Maintaining an Estate Plan: A Practical Checklist.

☐ Update guardianship nominations.

☐ Update health insurance, life insurance, and retirement beneficiaries.

☐ Notify the Social Security Administration of the name change.

☐ Update school and medical records.

☐ ⚠ Confirm any prior child support obligation is terminated prospectively. Arrears accrued before the decree generally survive — see Establishing, Modifying, and Enforcing Child Support: A Practical Checklist.

☐ Retain the complete file permanently, including registry certificates, ICWA correspondence, and compact approval. ⭐ This file is the answer to any collateral attack, and it may be needed decades later.

Phase 12 — Open adoption agreement

☐ Determine enforceability in the state — fully enforceable if court-approved · enforceable in limited categories · unenforceable against the adoptive parents.

☐ Get it approved at finalization where the state allows.

☐ Specify: frequency · method · who initiates · intermediary · how the schedule changes as the child ages · what happens if the child declines · address updates · what may be posted publicly · mediation before any enforcement filing.

☐ ⚠ Explain to the birth parent that breach does not undo the adoption and the remedy, where one exists, is contact — never return of the child.

☐ ⭐ Vagueness is how these agreements fail. Specificity is the whole drafting technique.

Mistakes that undo completed adoptions

⚠ Failing to notify a known putative father. The most common successful collateral attack. ⚠ Skipping the tribal inquiry. Holyfield vacated a three-year-old decree. ⚠ Taking the consent early. Void, not voidable. ⚠ Notarizing where the state requires a judge. ⚠ Searching one registry when conception may have occurred in another state. ⚠ Searching at the wrong time. ⚠ Moving the child before compact approval. ⚠ Undisclosed history discovered in the background check. ⚠ Signing the subsidy agreement after the decree. ⚠ Handing cash to a birth parent. ⚠ Promising contact without a written, court-approved agreement. ⚠ Concealing the child's medical history from the adoptive family — the root of wrongful adoption liability. ⚠ Treating a stepparent adoption as simple when the other parent has not signed.

Route-specific supplements

Stepparent adoption

☐ Confirm the marriage and its duration against any statutory minimum. ☐ ⭐ Get the other legal parent's consent first, before anything else. ⚠ This is the whole case. Everything else in a stepparent adoption is streamlined; this is not. ☐ Where consent will not come, plead abandonment or failure to support, and expect a contested termination with appointed counsel for the absent parent. ☐ Assemble: support payment history · contact log · attempts to facilitate contact · the child's own statement where old enough. ☐ Confirm whether the home study is waived and whether a criminal background check is still required — it usually is. ☐ ⚠ Confirm the effect on the existing support order and file to terminate it prospectively at finalization.

Relative adoption

☐ Confirm the relationship qualifies for the streamlined procedure and the compact exemption. ☐ Address ongoing family contact expressly — the birth parent will be at Thanksgiving. ☐ Ask about a guardianship alternative where permanency can be achieved without severance; some families and some courts prefer it. ☐ Check kinship subsidy eligibility separately from 42 U.S.C. § 673 adoption assistance.

Second-parent adoption

☐ ⭐ Do it even where both parents are already on the birth certificate. A decree is a judgment entitled to full faith and credit; a presumption is state law another forum may contest — V. L. v. E. L., 577 U.S. 404, and Pavan v. Smith, 582 U.S. 563. ☐ Confirm the state does not require termination of the existing parent's rights — most provide expressly that it does not. ☐ Address any known donor, and confirm the donor statute's effect on parentage.

Foster care adoption

☐ Track the dependency case timeline — 42 U.S.C. § 675 permanency hearings and the fifteen-of-twenty-two-months petition rule. ☐ Confirm the foster parent's standing to petition and any relative preference that may displace the placement. ☐ ⭐ Negotiate the subsidy before the decree, and document every special-needs criterion the child meets. ☐ Request the complete case file, including all medical and psychological evaluations.

Adult adoption

☐ Consents of both adults, and any statutorily required notice to existing parents or a spouse. ☐ Confirm the inheritance consequence intended, and update the estate plan to match. ☐ Check whether the state imposes an age differential or a cohabitation prerequisite.

Intercountry adoption

☐ Confirm whether the sending country is a Hague Convention country, which determines the entire procedural track. ☐ Retain an accredited adoption service provider. ☐ Complete the federally prescribed home study. ☐ Confirm the child's eligibility under U.S. immigration classifications and the sending country's law. ☐ ⭐ Obtain a domestic re-adoption or recognition order after arrival, even where the foreign decree is final — it produces a state decree and a state birth certificate that every domestic institution understands. ☐ ⚠ Three legal systems must be satisfied. Assume none of them will coordinate with the others.

The five-minute file review

Before any finalization hearing, answer these five questions out loud. ⭐ If any answer is "probably," the file is not ready.

  1. Is every person whose consent is required either signed, terminated, or defaulted after proper service?
  2. Do I have a registry search certificate from every state where conception could have occurred, dated correctly?
  3. Do I have a written answer on tribal heritage from both birth parents, and a written tribal determination for any indication given?
  4. Has every revocation period expired, and can I prove the hour each consent was executed?
  5. If the child crossed a state line, do I have the approval letter in the file?

⭐ Five questions, two minutes, and they cover every ground on which a completed adoption is realistically undone.

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