Adoption Lawyers - Legal Service Attorneys for California, Open, Independent, Interstate, Contested, Adult, and Stepparent Adoptions and Guardianships for decades.

Adoptive Parents - Frequently Asked Questions

1. What kind of adoptions do you handle?
We handle all kinds of adoption cases, including independent and agency adoptions, stepparent adoptions and adult adoptions. We can also assist with the legal services in international adoptions.

2. How long have you been handling adoption cases, and how many have you handled?
We have been handling adoption law cases for over 30 years, and conservatively estimate that we have handled over 2500 cases in that time.

3. What is the difference between an agency adoption and an independent adoption?
In an agency adoption, the birth mother signs something called a "relinquishment," which terminates her parental rights, and makes the adoption agency the legal custodian of the child. The agency then places the child for adoption with an appropriate adopting family. Although these days, most agencies will allow the birth mother some input into what family is selected, it is still the agency, not the birth mother, who is placing the child for adoption.

In an independent adoption, the birth mother selects the adopting family personally, and places her child with that family personally, without an agency being involved in the process. Instead of signing a "relinquishment," she signs something different called a "consent," which does not terminate her parental rights, but does indicate her permission for the adopting family to adopt the child.

In recent years, a number of agencies have begun offering a hybrid adoption, which has many of the attributes of both agency and independent adoption, and these are often referred to as "identified adoptions," or "collaborative adoptions."

4. Are independent adoptions unusual?
No, in fact, in California, independent adoptions are the norm, and agency adoptions are the exceptions. It has been widely reported that 86% of all adoptions of newborns in California are independent adoptions. Independent adoptions are legal and widely accepted in all states except Colorado, Connecticut, Delaware, Massachusetts, and North Dakota. In those few states, it is necessary to structure the adoption through an agency.

5. What is the average wait to obtain a baby by independent adoption?
There really isn't an average wait, as placements do not occur on a first-come-first-served basis. We have prospective adopting families prepare and submit a profile or resume, which we then show to birth mothers so that they can make meaningful choices among their options. Some profiles are picked immediately, the record currently is just three hours. Other profiles are picked only after long delay, and some are never picked at all. However, we can say that a majority of our couples are matched with a birth mother within one year from the date we receive a completed resume or profile.

6. What is the average cost for an independent adoption through your office?
The costs vary widely, but the average is about $19,000.00, all-inclusive, for an adoption where all parties reside in California, and $23,000.00 plus travel expenses where the parties reside in different states. These average costs include medical bills, counseling bills, legal bills, living expenses of the birth mother, and governmental fees such as the home study. Interstate adoptions are more expensive because there are two or three layers of bureaucracy to deal with instead of one, and in most states it is necessary to hire a lawyer in the other state. Interstate adoptions also involve more paperwork, red tape and delay, because of something called the Interstate Compact On The Placement of Children.

Starting in December of 2005, a new insurance policy became available to cover the costs of an attempted adoption. Reportedly, the policy covered not only a change of mind by a birth parent, but also a miscarriage or stillbirth. This policy was only available to the clients of attorneys who are members of the American Academy of Adoption Attorneys or the Academy of California Adoption Lawyers. If one purchased the insurance policy, and the birth mother changed her mind about the adoption plan, the insurance would reimburse the adopting family's loss, subject to the terms and limitations of the policy. However, we received word in late November, 2007, that the policy has been withdrawn, hopefully just temporarily, due to "adverse market conditions." We are hoping that the policy will be reinstated, and will be watching the matter closely. Watch this space for further developments.

7. I have heard that there is a federal adoption tax credit that may reimburse part of the cost of an adoption. How does that work?

We are not tax lawyers, and do not give tax advice, but it is our understanding that for qualified adopting parents, there is a tax credit in the base amount of $10,000. available to adopting parents, which may offset most or all of the cost of an adoption. A tax credit is much better than a deduction. For example, if a family is in a 33% tax bracket, a $10,000. credit is as beneficial as a $30,000. deduction. In an independent adoption, the credit is claimed in the year in which the adoption is finalized, and was originally available to families with adjusted gross income less than $155,000. For families making more than $155,000., but less than $195,000., the credit was reduced pro rata, hence, a family earning $175,000. would be able to claim a credit of $5,000.

These figures are indexed, which means that they are adjusted annually to account for inflation. Thus, according to IRS Revenue Procedure 2007-66, for taxable years beginning in 2008, the maximum credit allowed is $11,650. For adoptions finalized in 2008, the credit begins to phase out for taxpayers with modified adjusted gross income in excess of $174,730 and is completely phased out for taxpayers with modified adjusted gross income of $214,730 or more. According to IRS Revenue Procedure 2008-66, for adoptions finalizing in 2009, the credit has been adjusted to $12,150, begins to phase out for those with adjusted gross income exceeding $182,180., and disappears for those earning $222,180. or more.

The tax credit makes adoption an affordable option for many families who could not afford to adopt otherwise. An adopting family should discuss this credit with their tax adviser, as the rules governing the tax credit are quite complicated, and we are not qualified to give tax advice.

8. I have heard that the birth mother has six months to change her mind in California. Is this true?
No, California law has never given the birth mother six months to change her mind, that is a myth that was repeated in the media so often that many took it to be gospel. Starting in 1995, California law gave the birth mother up to 90 days to change her mind, however, she could waive the 90 days if she wished. In 2002, the law changed to shorten this time period to 30 days.

9. Is it common for a birth mother to change her mind and take the child back from the adopting family?
No, it is very rare indeed, at least if you know what you are doing and exercise great care. With proper handling by an experienced adoption professional, the risk of such a disaster is rather minimal. In the 28+ years we have been doing independent adoptions, and in over 2500 cases, we have had a total of only twelve "takebacks." In two of those cases, the adopting parents found the birth mother themselves prior to retaining our services, and after talking with the birth mother we urged the adopting parents to abandon the adoption before they were hurt, but they chose not to listen to us. We do not think those two cases should count, thus, in reality, we have seen just ten takebacks in about 2500 cases over 28 years, or a rate of less than one-half of one percent.

10. Is the birth father's consent required in all cases?
Actually, the birth father's consent is required in only about 20% of all cases, and in the remaining 80% of the cases his consent is not necessary. To generalize, his consent is required if: (1) he has married the mother, (2) he has received the child physically into his home and has publicly acknowledged paternity, (3) he and the mother have both at the hospital signed a special California state form in which they both agreed that he was the father, or, (4) he has done everything he can to take responsibility for the child, both financially and emotionally, during the pregnancy. These cases sometimes turn on subtle distinctions of fact, therefore, it is imperative that anyone considering an adoption have the facts thoroughly reviewed by an experienced adoption lawyer to determine whether the father's consent is required.

Please also be aware that, even if the father's consent is not required, California law still requires that he be notified of the adoption, and the law gives him the right to file a lawsuit if he wishes to object to the adoption. However, if his consent is not necessary, and if he files a lawsuit to oppose the adoption, the law says that he will lose that lawsuit unless the court finds that the child is better off with him than with the adopting parents. In other words, it is a "best interest" test, and the court simply looks at the birth father, and then looks at the adopting parents, to determine who can provide a better home for the child. Under such a comparison, the single, unwed birth father will usually be found to have less to offer to the child, with the result that he loses the case and his parental rights are terminated.

11. Is it legal in California to pay a birth mother's living expenses?
Yes, it is both legal and customary, with some limitations and conditions. California law provides in Penal Code § 273, that it is legal to assist with a birth mother's reasonable and necessary pregnancy-related living expenses, for the period of time that she is disabled or unemployable due to the pregnancy. This payment of expenses must be made unconditionally and as an act of charity, otherwise, it could be considered buying the baby. There are some subtle and difficult issues connected with the payment of birth mother living expenses, so be sure to talk to us about this prior to committing to the payment of any expenses to or for a birth mother.

12. Does a birth mother get any counseling in an independent adoption?
Yes, in fact, the law provides that the adopting parents are required to offer the birth mother counseling, at the expense of the adopting parents. This statute says that they must offer to pay for at least three counseling sessions, although we generally recommend more than three sessions. We typically hire the best qualified counselor or therapist in the birth mother's community, so that it is convenient for her to go to the counseling sessions. We strongly encourage counseling for birth mothers, and have done so for 28 years, including 16 years before the law went into effect in 1995, requiring the offering of counseling to a birth mother.

13. Who do you represent, the birth mother or the adopting parents?
In most cases, we represent the adopting parents, but sometimes we are hired to represent the birth mother. In each case, California law requires that the birth mother be offered separate legal counsel of her own, to look after her interests. She is not required to have a lawyer, and may waive legal counsel, but the offer must be made in each case. The law requires the adopting parents to offer at least $500.00 for this purpose, but they may agree to pay more.

Although California law allows one lawyer to represent both the birth mother and the adopting parents simultaneously, this is quite controversial and is frowned upon by most courts, and we will not handle "dual representation" cases. We may, however, make an exception in the case of a contested adoption, in which a birth father is suing the birth mother and the adopting parents to block the adoption. In that unusual circumstance, the adopting parents and the birth mother have a common interest in uniting to defeat the claims of the birth father, and it seems to us that this common interest may outweigh the potential conflict of interest. However, each case must be evaluated on its own merits, and the ultimate determination may depend upon the relationship between the birth mother and the adopting parents.

14. How should an adopting family select an adoption lawyer?
There are a number of factors one should consider. First, how experienced is the lawyer? Second, does the lawyer belong to the professional certifying organizations, such as the American Academy of Adoption Attorneys, or the Academy of California Adoption Lawyers? Third, does the lawyer exhibit a commitment to an ethical practice? Fourth, are you able to communicate with the lawyer, i.e., does he or she promptly return your phone calls and respond to your correspondence? Fifth, is the lawyer's fee structure fair, reasonable, and clearly explained? Sixth, are you comfortable with the lawyer's philosophy of adoption, when it comes to such issues as how "open" an adoption should be? Seventh, is the lawyer a member of the Better Business Bureau?

One of the greatest mistakes some families make is the assumption that it is important to have a lawyer who is nearby geographically. Actually, one is better off with an excellent lawyer at the opposite end of the state, than with a mediocre lawyer next door. Between long distance phone service, email, and overnight delivery services such as Federal Express, the disadvantages of distance are really rather minimal.

15. How does the Donnelly Law Office measure up on these considerations?
We have been handling adoptions for over 30 years, and Mr. Donnelly is a past president of the Academy of California Adoption Lawyers, and a charter member of the American Academy of Adoption Attorneys. He was the principal author of the Code of Ethics of the American Academy of Adoption Attorneys, and served two terms as Chairman of the Ethics Committee of that organization. He also wrote the Code of Ethics for the Academy of California Adoption Lawyers, and is currently Chairman of the Ethics Committee of that organization. Except in those rare instances when Mr. Donnelly is in trial or out of town, every call is returned on the same day, and he does not go home at night until all calls have been returned. Unlike most adoption lawyers, the Donnelly Law Office does not charge high flat-rate fees for adoptions, and all services are billed by the hour, which usually results in a significantly lower fee, and a fee more closely related to the difficulty and complexity of the case at hand. He is also a long-time member of the Better Business Bureau, and has earned that organization's highest rating, AAA, for fair and ethical business practices.

16. If we are interested in moving forward with an adoption through your office, what do we do?
The first step is to schedule an appointment, so that we can get together and discuss the specifics of your situation. This meeting serves a number of purposes. First, it allows us to understand your specific situation and goals, so that we can determine the best means to meet your adoption objectives. The meeting also is important so that you can have all your questions answered, as independent adoption is not inexpensive and is not free of risk. Adoption is not for everyone. It is important that you understand the adoption process before you get deeply involved, in order that you might make an informed decision as to whether independent adoption is the right method of adoption for you.

Adoption Lawfirm Logo

To read introduction letters from adoptive parents,
click here.