open adoption roundtable: agreements

Anyone interested in adoption, and open adoption in particular, should check out the new Open Adoption Bloggers site, which is dedicated to highlighting various perspectives in the adoption constellation. Kudos to Heather for getting it up and running! Be sure to check out the blogroll and peruse past discussions under the Open Adoption Roundtable.

The Open Adoption Roundtable is “designed to showcase of the diversity of thought and experience in the open adoption community.” The latest prompt covers open adoption agreements (OAR #36):

Write about open adoption agreements. Is there one in your open adoption? What effect does it have on your relationships? If you could go back in time, would you approach the agreement differently?

First, a bit about post adoption contact agreements in California. I am fortunate to live in a state where such agreements are enforceable in court. I don’t know how many other states allow legally binding agreements, but here a contact agreement may be filed with the final adoption order and it becomes legally enforceable. Under California law:

“Post-adoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children and the agreements are voluntarily entered into by birth relatives, including the birth parent or parents … and adoptive parents.”

The form filed with the court can be found here. It lists names of birth family members who have a right to some form of contact (e.g., phone, letters, email, visits, other, etc.) with the child. You can also attach a supplemental, more detailed agreement, which we did, as advised by our consultant who specializes in open adoption. The additional contact agreement explores how much and what type of contact is desired at a minimum, including holidays and other occasions. When attached to the court form, this agreement becomes enforceable as well.

Failure to comply with the agreement, however, is not grounds to set aside the adoption. (That is still only done in extreme cases of fraud or duress.) Rather, a judge may merely try to enforce the terms of the agreement, and only after the parties attempt to resolve the disagreement first. A judge will not even consider a request to enforce, change or end the contact agreement until all parties have tried mediation or some other dispute resolution. In other words, if someone listed on the form isn’t satisfied the agreement is being honored, they have a tool to force the adoptive parents to comply, but it would require significant resources.

So what does all this legalese mean, when you’re trying to build relationships? Can a written agreement govern a familial relationship? How can a court possibly help you establish trust and open communication? How can the threat of legal action make you a better parent, by birth or adoption? Answer: it doesn’t, it can’t, it won’t.

Still, these agreements do serve a purpose. As others have said, they can serve as guidance for minimum commitments. They can help clarify and map expectations. They can help facilitate an important discussion about what everyone wants and what is realistic. And of course, they do (or should) help safeguard the rights of birth family members who want ongoing contact with the child.

In that sense, I think a contact agreement can help address the shifting of power in open adoption. It is often said that expectant parents have much of the control (or power) before placement, while adoptive parents gain control (power) after placement. While this may be a crude assessment, there is some merit in that the parents responsible for the child get to make significant choices affecting the child’s well being. Asserting enforceable rights through a contact agreement may be empowering for a birth parent who might otherwise feel little control after placement.

When we first met Kaye — after she decided to place but before she gave birth — we talked at length about the kind of open adoption we wanted. We explained why we wanted the baby’s family of origin in his/her life. She shared her desire to maintain an ongoing relationship. We met her family members, who also clearly wanted a role in this baby’s life. We all agreed we wanted a fully open adoption, but we didn’t know exactly what it would look like. How could we?

One afternoon about a month before Baby Jaye was born, we sat around our coffee table with Kaye, over big steaming mugs of tea, to discuss the agreements. While we intended to file them in court, I honestly don’t think we needed the paperwork to bind us. Here was a woman who humbled us with her intention to make us parents of her baby. We would become family. Yet what we really needed was to have that conversation. We needed to know what Kaye wanted, what she expected. She needed to know how willing we were to maintain that open invitation into our lives. Ultimately, I think the process helped empower Kaye to realize that she did indeed have a say, she had rights that would be protected. The agreements were not so much insurance as reassurance, perhaps, that we really did want her around, that she would get to participate. It would make our words and intentions official.

The agreements helped create a dialogue about specific expectations. They guided us through a discussion of what our life as a blended family could look like, at a minimum. They offered a mere blueprint, a skeleton, the bare bones that would need to be fleshed out through actual experience and insight, learning as we go what works and what doesn’t, ultimately building a stronger relationship with a life of its own, far beyond what any legal document could provide. The process though was critical — i.e., being honest as we communicated what we all wanted and how we were each willing to participate in our open adoption.

Now it seems the form is just a paper, despite its legal enforceability. I honestly haven’t looked at it since it was filed. We don’t call Kaye on her birthday (or any holiday) because a legal agreement requires it. We don’t send photos and updates to her family merely out of obligation. We do it because they are family. We do it because we love Kaye and because we want to share the joys of our daughter’s life together. We welcome and encourage contact because it is important for our daughter’s well being, above all.

Still, looking back, if I were to change anything, I’d probably want to expand the scope to include more about Kaye’s commitment to us and Jaye. As it stands, the agreements mostly commit us rather than Kaye. It’s not that we need an agreement to tell Kaye what she should do. But it might have been helpful at the time to frame our conversation in that way as well.

To read other perspectives on open adoption agreements, check out the current Open Adoption Rountable (OAR #36). To sign a new petition to introduce a bill to make such agreements legally binding, click here.

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~ by luna on April 13, 2012.

4 Responses to “open adoption roundtable: agreements”

  1. I have a what if — where do the child’s feelings factor into the agreement? Obviously they can’t have feelings at birth, but as they age, they will know what feels right to them. What happens if the child doesn’t want to uphold whatever was outlined in the agreement? If the adults all want to continue the agreement, but the child doesn’t want contact or doesn’t want their picture sent? Will the adults continue to enforce the agreement? What if all the adults in the picture disagree with how much weight the child’s feelings should have in balance with their own?

    On one hand, I can think of plenty of situations where a child doesn’t want to see a family member and they’re still told they’ll have to see that person — why should it be different in this case? And on the other hand, the agreement is being created in the child’s best interests but children age and form opinions. Is it rewritten when the child is old enough to weigh in?

    Totally curious since it is a binding document.

    • mel, it’s really a terrific question.

      first scenario is the parents all discuss what the child wants and hope they agree to abide by the child’s wishes, with no court involvement. the agreement can be amended as well, if all the parties agree. but you also ask what if they don’t agree with each other, or with the child perhaps. I suppose it’s unclear.

      certainly if there was cause to show that contact wasn’t in the best interest of the child, you could approach the court if all else failed. but how hard or relevant would it be to show harm to the child’s well being, if physical danger wasn’t at issue? I don’t know.

      ultimately you are asking at what point does the child’s right to self-determination becomes paramount. an excellent question.

      in our case, if we couldn’t work it out on our own or if we wanted some guidance and facilitation, we would approach the consultant we worked with before for some counseling, probably 1:1 with our daughter and with all the parents too. ideally we’d reach some form of resolution that made everyone comfortable. I couldn’t see amending the agreement unless K wanted to.

  2. Great post. Love how you guys talked it out in the beginning like that. I think forcing a conversation at the beginning and a barebones set of rights for the birthparents at the outset is the best reason to have an agreement. But really…? My son’s birthparents changed their needs and desires radically over the course of almost three years. They and we could never have known prior to birth what any of us really wanted. So over three years, we’ve all had to listen, be flexible, be patient and constantly re-look at our relationship. An agreement could quickly become dated. Not to mention as you did that the adoption itself is legal so enforcing an agreement would be costly and awful I imagine. Your other point is what happens when the birthparents don’t keep up their end of the agreement?

    I see how the agreements have merit and can be useful for setting the stage but ultimately, all parties have to work together over time to adapt to what works in a given moment. Obviously, when our children are older, the relationship will shift again.

  3. Like a marriage license n a happy marriage, you rarely have reason to look back at it. “The agreements were not so much insurance as reassurance, perhaps, that we really did want her around, that she would get to participate. It would make our words and intentions official.”

    Not having an OA agreement, I enjoyed knowing more about yours — how it came about, what it said, what it means to you and Kaye.

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