General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
India has a small but thriving industry. Surrogate mothering.
For poor, uneducated Indian women, being a surrogate is a way to earn the equivalent of $4 or $5,000.
And then the biological parents adopt the child.
But sometimes, things go wrong.
For example, a Japanese couple hired an Indian surrogate mother to carry their baby to term.
But before the baby was born, the couple divorced.
Now the biological mother no longer wants the baby. And the surrogate doesn’t want the baby.
The biological father does but, under Indian law, a single father cannot adopt.
So now the eleven (11) day old baby remains in the hospital, under the care of the biological father’s mother.
Awaiting someone who can take legal custody of her.
Read more in this Canadian Press article: Surrogate child custody case in limbo in India after Japanese parents divorce.
Japan may be a modern country technologically. But not legally, according to reports.
In approximately 80% of divorce and paternity cases in Japan, the father loses all parental rights, excluding the “right” to pay child support. In the remainder of cases, it is the mother who is stripped of her parental rights.
Visitation? That’s not a concept that is part of Japanese family law.
When parents break up, the “other parent” fades out of their children’s lives. Another family member may even adopt their children without their consent.
How does a parent win custody in Japan?
One alleged way to get a leg up on a custody award in Japan is to abscond with the child, even across international boundaries.
Statistics suggest that some 10,000 children in Japan have no access to their foreign parent.
Japan is a not yet a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Although there are rumors that it will adopt the convention in a couple of more years, one has to wonder whether it will really matter.
Japanese family law is in need of a paradigm shift. Without that, change may be a pipe dream.
Japan did sign the Convention of New York, the purpose of which was to assure children access to both parents. It didn’t.
Family law activists in Japan are lobbying for a long overdue overhaul of the Japanese family law.
Read more in this Singapore Straits Times article: Over 160,000 Japanese children split from one parents every year.
It seems that the answer depends on who is answering the question.
A report just released, and endorsed by several associations, concludes that it is worth the extra wait for minority foster children.
The reasons cited were that minority children adopted into white families “face special challenges” and that “white parents need preparation and training for what might lie ahead”.
On the other hand, many child welfare workers say that the federal law that makes the adoption process race-neutral has helped many minority children find permanent homes - and sooner.
It is unknown whether the report addresses whether children in foster care “face special challenges” … particularly when they remain in the child welfare system for prolonged periods of time, even through the age of majority.
Maybe the answer really turns on precisely how much longer minority children will be doing the waiting. At least to the minority children doing the waiting in foster care.
One has to wonder: was the question put to any of them - while they were still children in foster care?
Read more in this New York Times article: De-emphasis on Race in Adoption Is Criticized.
Baby is taken into protective custody by Missouri.
Baby is placed with Biological Cousin and his wife.
They provide a loving home and seek to adopt Baby.
State removes Baby from Biological Cousin and places Baby with unrelated couple.
Generally, children’s welfare agencies prefer to place children with suitable relatives rather than strangers.
Why would the state remove Baby from biologically-related foster parents to strangers?
Well, Biological Cousin alleges that it was because he was obese.
The Court said that he didn’t properly follow state procedures for bringing a child into the state.
It took six months, but Biological Cousin got Baby back - after having gastric bypass surgery …
Read more in this Kansas City KMBC TV 9 article: Judge Rules In Baby Max Custody Case and this Kansas City KMBC TV 9 article: Baby Max Stuck In Middle Of Custody Battle.
Florida Baby’s biological mother is incarcerated for trafficking in narcotics and prostitution.
Baby’s biological father left the state when Baby was just three weeks old.
Baby was placed in foster care with a loving family, the only family she has since known.
Baby is now four.
Foster family continues to want to adopt Baby.
But, now, biological father, long absent, returns, out of the blue, to assert his right to take Baby to his new home in California.
It was recommended some time ago that social services terminate the biological father’s parental rights, to free the child up for adoption to her loving foster family.
Only it never happened, let alone in a timely fashion. Had it happened, the courthouse door would most likely have slammed in biological father’s face.
What is particularly sad in this case is that the foster family could have - and undoubtedly would have - asked the Court themselves to terminate the biological father’s parental rights - if they had only known that they had that power and right.
But no one ever told them … until it was too late.
Meanwhile, the biological father is allegedly still battling substance abuse problems of his own, even as the Court appears to be ordering reunification.
But the biological father has rights.
And, according to the family courts, Baby apparently doesn’t.
Read more in this Orlando Sentinel article: Orlando-area family faces losing foster child.
Four month old baby removed from parents’ home by social services.
Baby placed with foster family.
Biological parents’ parental rights are terminated.
Foster family wants to adopt Baby, who is a dual citizen of the USA and Mexico.
Twenty two months later, Baby’s biological grandmother in Mexico seeks to adopt him.
Trial court holds that Baby should be turned over to biological grandmother in Mexico.
Appellate court agrees.
Case draws national and international media attention.
Oregon’s child welfare services agency took something of a beating in the case, accused of misleading all concerned. Then agency arranges a mediation in Oregon - which lasts for ten hours.
As a result, everyone agrees that Baby should remain with foster parents in Oregon and that foster parents may adopt him.
They also agree that biological grandmother should have visitation and access rights and that Baby should learn to speak and write Spanish fluently.
Last, but not least, agency agrees to pay the Baby’s foster parents’ legal fees in the matter.
Read more in this Newport News-times article: Foster child to remain in Oregon.
November is National Adoption Month.
In her new book, an author reminds potential adoptive parents that many children, particularly special needs children, are waiting for them … and adoption out of the foster care system into loving homes.
She would know. She is the adoptive parent of a special needs child herself.
Learn more from this PRWeb press release: Best Selling Author Speaks Up For Special Needs Adoption and the author’s own website.
Woman adopts eleven children in New York City. Woman later moves to Florida.
Woman raises children - with no education beyond fourth grade, no medical care, without adequate food, without normal social contact, without freedom.
Why?
She adopted the children to collect payments from New York City. Over a million dollars in fact.
All of the children, now aged 15 to 27, suffer from physical and mental disabilities.
The woman, now 62, faces criminal charges of abuse and neglect in Florida.
And the Florida court can now request that the New York courts unseal the normally confidential adoption records.
The records are needed to nail down the identities of the victims, nine of whom are now disabled adults in the care of the state of Florida.
The whereabouts of two others is unknown.
The state just took the woman’s grandchildren from her biological son into protective custody as well.
Read more in this ABC ActionNews.com article: Florida prosecutors can ask judge to unseal records in abuse case and this Newsday article: NY adoption records relevant in Florida abuse case, judge says.
Widowed Mother sentenced to jail.
Mother gives temporary custody of her children to late minister-husband’s parents.
Mother’s sentence is almost discharged.
Husband’s parents move to terminate Mother’s parental rights and to adopt the children.
The reason Mother was incarcerated was her conviction for killing her minister-husband.
Now Mother appeals to stop her in-laws’ applications.
Appeals court refuses to hear the Mother’s appeal - at least at this early stage of the proceedings.
Accordingly, termination of parental rights of Mother may proceed, clearing the way for the husband’s parents to adopt the children.
Of course, the Mother may have a basis to bring an appeal later.
Read more in this WMC-TV Memphis Action News 5 article: Appeals court declines to intervene in Winkler custody case.
In a far-reaching case, the Florida Supreme Court has held that adoption agencies must notify unmarried biological fathers that their children are going to be placed for adoption and how to register in the state’s paternity registry to protect their rights. If the father still fails to register after thirty days, his parental rights may be terminated.
A statute imposing a time limit on biological fathers to assert their rights was intended to facilitate adoptions and give adoptive parents and the baby finality.
But there have nagging questions with regard to how many biological fathers are actually aware of paternity registries, both in Florida and in other states, let alone how to register with them.
In the case before the Court, the biological father promptly filed a paternity case in court, but failed to register with Florida’s paternity registry. The father maintained that he was unaware of the registry.
The Supreme Court sent the case back to the trial court for further fact-finding.
Read more in this Citrus County Chronicle article: Court rules for unmarried adoptive [sic] fathers.
A Michigan appeals judge is crying out that the state’s budget cuts are causing the state’s child welfare and protection sytem to fail Michigan’s children.
On average, ten Michigan children per year die in foster care.
Adoptions get bogged down, because the prerequisite termination of parental rights can’t be timely finished, because an appeal is still pending.
In recent years, appeals have been moving substantially faster, because of the services of outside contract attorneys.
But no longer. Due to budget cuts.
Before long, the judge fears, appeals will remain open longer.
And more children will die. Due to budget cuts.
Read more in this Lansing State Journal editorial: William Whitbeck: Vulnerable children victimized by crisis in Mich.’s finances.
Last April, I posted on Biological Parents from Abroad Challenge US Adoption Six Years After Placing Child into Foster Care.
Now the Tennessee Supreme Court has ruled that the now-seven year old girl, having spent nearly all of her seven years with the former family friends who raised her, must return to live with the birth parents who voluntarily placed her with them.
This after a lower court terminated the birth parents’ parental rights, which ruling was previously upheld by an intermediate appellate court.
The birth parents have rights.
However, the unfortunate child impliedly does not.
Read more in this Memphis Commercial Appeal article: Anna Mae ruling likely will stick.
In the shadow of courts grappling with the concepts of gay civil unions and gay marriage, and rights of gay couples to adopt children, comes a different sort of case out of Maine.
A gay woman formally adopted her partner in a lesbian relationship, with the intention of securing her dependent partner’s rights to inherit from her wealthy family in the event of the wealthy partner’s death.
As a result of the couple’s eventual breakup, complex cases are now pending in two different states - cases which turn upon technicalities, policy arguments and substantive legal grounds.
Some of the Technicalities: The couple actually lived in New York, which explicitly barred adoption between sexual partners, reserving it for parent / child relationships. The adoption in question apparently took place during an extended vacation in Maine, which had no such explicit prohibition. Maine’s jurisdiction is called into question based both on failure to meet the residency requirement and affirmative fraud upon the court.
Some of the Policies: If the elected officials of a state deny inheritance rights to resident gay partners through either marriage or civil unions, should resident gay partners be allowed to circumvent their home state’s social legislative policy by exploiting the less stringent adoption laws of a different, convenient state?
Some of the Substantive Legal Grounds: The creator of the trust that is at the heart of the matter reportedly did not even know about the adoption which transformed the woman that he knew only has his daughter’s gay partner into his legal grandchild - and an heir to his trust. As a matter of estate planning law, should his alleged intentions be thwarted by undisclosed, unforeseeable legal maneuvers by his daughter and her partner?
On the practical side, if the adoption is upheld, Maine might develop a “cottage industry” of hosting gay partner-adoptions for inheritance rights on behalf of homosexuals all over the country.
Of course, none of this would be in issue if gay couples could simply automatically inherit from each other by virtue of marriage or civil union.
This unusual case may turn out to be more significant than it may appear at first blush.
Read more in this Portland Press Herald article: Unusual adoption case has high stakes.
China is reportedly implementing new rules making it tougher for Americans and other foreigners to adopt their orphaned children.
Many Americans, some of whom have already adopted Chinese children in the past, are disappointed and angered over the changing policies in China.
But China is within its legal rights and is actually following in the footsteps of other countries with babies available for adoption, such as South Korea.
Some of the would-be parents who may be turned down in the future include:
Read more in this Los Angeles Times article: Babies’ best interest - China awkwardly but appropriately changes its adoption rules.
A 7 year old boy has been raised by his foster mother for five years. The boy’s father has been in jail practically since the day he was born. The child’s mother is also imprisoned.
While in prison, the father made efforts to keep tabs on his son, to contact him, to have visitation with him and to obtain custody of him.
Possibly in anticipation of the father’s impending release on probation, the foster mother instituted proceedings to adopt the child.
At trial, the court terminated the father’s parental rights and approved the adoption.
But, on the father’s appeal, the judgment was reversed. The appellate court held that the father should not automatically be deprived of his parental rights just because he had been incarcerated. The father, by his efforts, had earned the opportunity to pursue visitation and, ultimately, custody upon his imminent release.
The ruling appears to have been grounded solely in parental rights. It did not appear from the report whether the court considered any rights the child might have or the best interests of the child after five years living with his foster mother and probably with no memory of either of his biological parents.
The boy’s mother does not appear to have attempted any contact with the child nor to have participated in the adoption proceedings or appeal in any way.
An editorial in Florida today highlights the sad story of how many children have languished far too long in foster care with no realistic prospect of either adoption or reunification with their biological family.
And how a recently adopted statute is shortening their stay there and freeing them up for adoption sooner.
In Brevard County, a local organization has displaced the Department of Children and Families in coordinating care of children in the system.
The group has also launched an ambitious new website to help match up kids in foster care with prospective adoptive parents, taking advantage of compelling, professionally taken photograph of the kids.
Read more in this Florida Today editorial, Our view: More homes needed.
Parental rights of unwed fathers generally vary according to the paternity laws of the various states.
But the Indian Child Welfare Act, a federal law, provides additional legal protections to biological fathers and their tribes before a child of American Indian heritage may be adopted out.
In addition to any notice which may be required to be given to the biological father, notice must also be given to the official representatives of the appropriate tribe. And the tribal entity has jurisdiction over any child of American Indian heritage.
A Mormon church-affiliated adoption agency reportedly recently facilitated an adoption of a baby whose biological father turned out to have been of Navajo heritage.
The Navajo Nation claims that the agency never contacted them, although the agency allegedly was aware that the baby may have been of Navajo heritage.
When the biological father learned that he had a child who was up for adoption, he filed a petition for custody of the baby. His petition was denied, however.
Read more in this Salt Lake [UT] Tribune article: Navajo Nation disputes adoption.
An adoption agency notified a biological father that his baby was going to be adopted.
That was how the biological father allegedly first learned of the child’s existence.
By that time, the baby was two months old and had been living since he was three days old with the family that planned to adopt him.
Upon learning of the boy, the father sought custody of his son.
But the New Mexico trial court terminated his parental rights on the grounds that he had abandoned the baby and his mother, freeing the baby up to be adopted.
On appeal, the ruling was reversed and the father’s parental rights restored.
The case was remanded for a custody determination, but appeals are on the way.
Read more in this Albuquerque Journal article: Birth Dad’s Lawsuit Could Alter N.M. Adoptions; Father Is Seeking Custody of Child.
The New Mexico ruling could have a chilling effect on adoption in the state, to the detriment of would-be adoptive parents and, at least arguably, children awaiting adoption.
But what about father’s rights, especially where the father allegedly did not even know about the child?
One measure that several states, including Florida, have taken to aid fathers in protecting their parental rights is the creation of a registry in which unmarried, potential fathers may log each partner with whom they have the potential to have fathered a child.
Timely registrants have rights to notice and to consent to any adoption of their child.
Failure to register before a termination of parental rights case is filed waives any rights the father may have had.
This approach balances all of the interests involved.
In 2000, a woman arranged to put her unborn baby up for adoption.
The birth mother moved in with the adoptive family after the birth. And didn’t like what she saw in the adoptive home.
The family’s other children were reportedly home-schooled and lagging socially. Two special needs children allegedly appeared neglected.
The birth mother tried to back out of her termination of parental rights and the adoption.
Since then, the case has been litigated up and down the Utah courts.
And 5 years later, there is still no decision as to who will ultimately be the boy’s parent(s).
In the meantime though, the boy is placed with the would-be adoptive parents, and has not seen his birth mother for several years.
Read more in this Salt Lake Tribune article: Adoption custody battle for 5-year-old continues.
A Texas woman allegedly surfed the internet to connect with prospective adoptive parents for her expected baby and to solicit financial assistance for her specially prescribed diet and medications.
There’s just one catch. The woman isn’t pregnant.
The woman reportedly defrauded half a dozen couples (including one or more couples here in Florida) and netted thousands of dollars.
According to media reports, the woman has been charged with mail fraud and wire fraud, both federal charges carrying hefty penalties.
Read more in this Houston EyeWitness News article and this Corpus Christi KRIS TV article.
A Boston couple has won a $400,000 judgment because adoption agencies failed to disclose medical information about the health and delivery of their adopted twin sons’ birth mother. The boys were born here in West Palm Beach fourteen years ago.
The concealed medical information placed the children at risk of various disabilities, and the boys do in fact suffer from a number of disabilities, including cerebral palsy and Tourette’s Syndrome.
The judge barred the jury from awarding emotional damages, constraining the judgment. The boys’ adoptive father doubts the boys will ever become self-supporting, and may appeal that ruling.
The jury also found the adoptive parents partially negligent.
Read more in this Sun Sentinel article and in this Bradenton Herald article.
Post partum depression has a high profile. It has been cited in murder cases and celebrity spats.
But adoption professionals and families involved in adoptions report a different, low profile condition: post-adoption depression. Although its cause is poorly understood at this time, it is reportedly not uncommon among adoptive mothers.
Some adoption agencies are now offering services to support adoptive parents with post-adoption depression.
Read more in After the Adoption, a New Child and the Blues.
Couple voluntarily place their infant into foster care.
Foster parents decide to adopt the girl.
Six years after giving her up, couple decide they want daughter back.
Case is on its way to the Tennessee Supreme Court.
Oh, the biological parents pressing the appeal are Chinese nationals. And the Chinese embassy and community groups are complaining of cultural bias in the courts.
The biological parents’ legal arguments are:
Read more in State Supreme Court will hear high-profile international adoption appeal.
When people adopt a child, amazing transformations occur because of a court order.
People instantly become parents, just as though they had been biological parents. A child instantly gains parents, just as though he or she had been born to them.
Obviously, the child simultaneously sheds its legal relationship to its biological parents. Adoption creates a new family.
But what if the child’s biological parents had other children? Does the legal relationship between a child and its biological siblings end just because the child is legally adopted into a new family?
According to an article in the Philadelphia Inquirer, a court-appointed attorney for a child in foster care in New Jersey doesn’t think so.
The child’s attorney argues that, even though the child’s relationship to her biological parents will end when she is adopted by her foster parents, it is her right to continue to have visitation with her biological siblings, who were previously settled in another foster home.
Such a holding would seem to call into question the very nature of adoption though.
Generally when children are swept into the foster care system, authorities place them with relatives - if suitable relatives are willing and able to take them in.
A recent USA Today article reports that relatives are increasingly going much further, adopting these children as well.
This, of course, benefits foster children, especially displaced siblings and older children who are more difficult to place with strangers.
The article also highlights the various emotional challenges unique to adopting a related child out of foster care. For example:
“an Iowa grandmother … says she felt pressure to adopt her grandson but didn’t want his mom becoming his sister.”
In Daytona Beach, FL, a custody battle has been raging over who gets to legally adopt a 4 year old boy: his foster parents or his biological second cousins.
The latest volley, reported in the Daytona Beach News Journal, was served by the foster parents, who petitioned to cancel further hearings since the court recently ordered the boy returned to them.
According to the Daytona Beach News, the appellate court held that the trial court, which placed the boy with his biological relatives, had committed legal error when it removed the child from his foster parents without adequate investigation and fact-finding regarding the child’s best interests.
This case is especially sad because this little boy’s home has been up in the air for fully half of this 4 year old’s life.
The case has been chronicled in a special section of the Daytona Beach News Journal.
Why in the world would a biological mother bring an action to adopt her own child?
In extreme cases of abandonment, abuse or neglect of a child, an action can be brought to terminate the legal rights of biological parent(s) to his/her own child. Usually the party bringing that drastic action is the state which has intervened to protect the child, and generally only after exhaustive efforts have been made to rehabilitate the parent’s parenting.
But an interested private party can also bring an action to terminate parental rights.
At the time that a child is legally adopted, all legal rights of the biological parents to that child terminate as a result of the adoption. An adoption case, in effect, includes a “streamlined” termination of parental rights case - without all the “rough edges”.
In a recent New York case, a child’s mother reportedly tried to adopt her own child - with the alleged intention of “quietly” terminating the legal rights of the allegedly abusive biological father of the child.
The New York courts disallowed the mother’s reportedly “sneak attempt” to terminate the father’s parental rights because they found that the mother didn’t comply with the stricter requirements of a full-blown termination of parental rights action. If the mother wanted to terminate the father’s parental rights, she couldn’t cut corners; she had to bring an action to properly do precisely that.
Everyone considering adopting children knows (or gets to know) the costs involved. Financial assistance may be harder to ferret out. This article helps.
The high cost of adoption: There’s Help Available From a Variety of Sources, Including Employers and Uncle Sam
By Kathy Kristof - Los Angeles Times
Suzzanne Ippel knows how expensive it can be to adopt a child. When she and her husband adopted a son and a daughter four years ago, they had to refinance their house to come up with the cash required to complete the process.
But luckily for them, there’s economic help available to adoptive parents from a variety of sources, including employers and the federal government.
For example, Ippel’s employer, Intuit, reimburses up to $3,500 of the expenses required to adopt each child and provides paid time off and immediate health coverage for the new family members.
For Ippel’s family, that benefit was worth $7,000 and a month of paid leave.
“It was a godsend,'’ said Ippel, a human resource manager based in Tucson. “When we finally sat down to figure it all out, the total cost was over $20,000 — and the costs didn’t quit when we got the kids home.'’
Intuit is among a growing number of big companies that provide adoption assistance that can be used in conjunction with federal tax breaks and, sometimes, state grants, to offset the often high cost of adoption.
Ippel and her husband also were able to claim federal tax credits that reimburse parents for qualified adoption expenses — which at the time of their adoptions was worth as much as $5,000 per child. All told, they eventually were reimbursed by Intuit and the federal government for $17,000 of their initial costs.
Roughly 100,000 parents adopt in the United States each year, spending as much as $40,000 in the process. Money to reimburse some of the costs is increasingly plentiful, although the source of the money and how much is available depends on the type of adoption, where the parents work and how much they earn.
COMPANY PROGRAMS: Adoption assistance programs for employees have become more common and more generous in recent years, according to annual surveys conducted by Hewitt Associates in Chicago.
Roughly 39 percent of the big companies Hewitt surveyed this year offered adoption assistance programs. That’s up from 36 percent last year and 31 percent in 2000. The average amount of cash assistance has also climbed from $3,100 five years ago to $3,879 in the most recent survey, according to Suzanne Zagata-Meraz, a Hewitt spokeswoman.
The appeal of these payments for employers is that, like pensions or health benefits, they are tax deductible for the company (and generally not taxable for the employee). The level of employer-provided assistance varies dramatically, however, according to the Department of Health and Human Services, which sponsors the National Adoption Information Clearinghouse. Some companies offer simple information and referral programs, while others will provide cash grants of as much as $15,000.
FEDERAL TAX BREAKS: The federal government has been providing tax benefits to adopting parents since 1997. These benefits have become increasingly generous over the years, jumping from a maximum credit of $5,000 to $10,630 per child today.
With a standard adoption, the credits can be used simply to offset “qualified'’ expenses, which include legal bills, travel expenses, adoption fees, medical bills and all other payments necessary to complete a legal adoption, said Mark Luscombe, principal tax analyst with CCH, a tax service based in Riverwoods, Ill.
But with so-called “special needs'’ adoptions — involving children who are difficult to place due to age or disabilities, for example — the credits can be taken regardless of how much the parents spent to adopt. In other words, if the adoption of a child with special needs cost only $1, the new parents could still take the full $10,630 tax credit. The credit can’t be used to generate a tax refund, but it can be carried over into future years, said Cindy Hockenberry, tax information analyst with the National Association of Tax Professionals in Appleton, Wis.
So if a family owes just $5,000 in federal income tax in the year of an adoption, it can wipe out that year’s tax bill and use the remaining adoption credit to eliminate as much as $5,630 in income tax in the following year as well.
Adoption credits generally are taken in the year that the adoption is final. But if an adoption drags on — or fails — the credits can be used to offset adoption-related expenses in the year after the year the expenses are incurred, Luscombe said.
The one caveat: Families with more than $159,450 in adjusted gross income, including foreign-earned income, lose a portion of the credit. Families with adjusted gross income above $199,450 cannot claim the credit.
OTHER ASSISTANCE: Private adoptions can be costly, but those who go through the public social service system often pay little, if any, cash out of pocket, said Joey Nesler, psychotherapist with the Kinship Center in Santa Ana, which works with adopted children.
In fact, parents can often qualify for adoption assistance payments, as well as medical coverage. Adoption assistance payments, which can last until the child reaches age 18, vary widely depending on the child and the parent’s needs. For instance, California’s public adoption Web site (www.cakidsconnection.com) says that virtually all children adopted through the foster care system in California qualify for financial assistance.
For educational purposes only and not intended to infringe on © 2005 MercuryNews.com
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