New York, November 16, 2012—Birth mothers and adoptive parents in the United States increasingly rely on post-adoption visitation agreements to spell out the details of any ongoing relationship.
But these relatively new contractual arrangements are not foolproof. In fact, enforcement of post-adoption visitation agreements varies greatly depending on the circumstances surrounding a birth mother’s relinquishment of parental rights, Professor Carol Sanger
explained recently in a lecture on family law. Because so much is at stake, such contracts should be entered into only with great care, she emphasized.
Sanger’s lecture, which she gave on October 24 as the Sidney and Walter Siben Distinguished Professorship Lecture in Family Law at Hofstra University’s Maurice A. Deane School of Law, combined her expertise in contracts, family law, regulation of maternal conduct, and law’s relation to culture. The written lecture, “Bargaining for Motherhood: Post-adoption Visitation Agreements,” will be published in the Hofstra Law Review in early 2013.
In the lecture, Sanger describes the evolution of adoption in this country from a process in which most adoptions were confidential, requiring birth mothers to sever all ties to their children, to a process in which many adoptions are open, with birth mothers not only participating in the selection of adoptive parents but sometimes retaining certain rights in the children themselves.
She says the shift from closed adoptions to open adoptions came after the advent of the contraceptive pill in the 1960s and the decriminalization of abortion in 1973, two factors that reduced the supply of infants placed for adoption. With more power in the bargaining process, over time many birth mothers began demanding the right to know more about their child post-adoption, including through actual visitation.
“Post-adoption visitation agreements provide a way to formally secure the interests and preferences of birth mothers and adoptive parents,” Sanger writes in the lecture. “The birth mother may no longer be the child’s legal mother, but neither is she a stranger at law.”
Sanger compares such arrangements to prenuptial agreements in which a marriage would not have taken place in the absence of the legal contract.
“The agreements both create and preserve parent-child relationships,” Sanger writes. “Indeed, the preservation appears to be what makes the creation possible.”
As more states allowed enforceable agreements between birth parents and adoptive parents, courts upheld visitation rights unless doing so would not be in the best interest of the child.
But post-adoption visitation contracts do not eliminate all possibility of error, misunderstanding, or dissatisfaction. The essential transaction in an adoption is the birth mother’s relinquishment of her child, Sanger explained. Whatever else has been negotiated on the side is not always as clear-cut.
Sanger explains that the system becomes less friendly to birth mothers when an agreement is not filed properly with the state, though judges have commented on the unfairness of rulings against birth mothers in those instances.
Birth mothers also have trouble enforcing visitation agreements in cases in which, facing permanent termination of parental rights by the state for abuse, neglect, or some other reason, they choose to voluntarily relinquish parental rights in exchange for future contact with the child.
In such cases, Sanger says, post-adoption visitation agreements may in fact be like plea bargains rather than prenuptial agreements. In a voluntary relinquishment, a birth mother waives her right to a hearing in which the state would have to prove that parental rights should be terminated just as a criminal defendant waives his right to a jury trial by agreeing to accept a plea bargain.
“Like plea bargains, voluntarily relinquishments, are necessarily hard decisions made under hard circumstances,” Sanger writes. And the deals are similarly hard to undo. “Like prisoners rolling the dice with regard to their liberty, mothers who are about to lose their children have a very small range in which to operate, and their odds are even worse.”
Because of the significance of decisions to terminate parental rights, Sanger stresses the importance of making sure all parties involved in post-adoption visitation agreements are aware of the consequences of their actions, particularly birth mothers who may not have understood that the “deal” they bargained for isn’t always enforceable.