http://www.flabar.org/newflabar/consumerservices/general/callalaw/CAL1083.html
ADOPTING A CHILD INDEPENDENTLY
An independent adoption is the adoption of a child without the need for utilizing the services of a licensed child placement agency or the Department of Children and Families. A home can be found for the child by the birth parent or parents directly or through the use of an intermediary. An intermediary in the State of Florida is an attorney or physician who is licensed or authorized to practice in the State of Florida. However, no child may be placed directly by a birth parent to an adoptive couple without the use of an intermediary.
The adoptive parent or parents usually employ an attorney to represent them. The birth parent or parents may also wish to consult an attorney. It is a third degree felony in the State of Florida for anyone other than a licensed child placement agency, an intermediary, or the Department of Children and Families to place a child for adoption within the State of Florida.
Only a licensed child placing agency or the Department of Children and Families may place a child born in Florida to an adoptive parent outside of the State of Florida.
The identities of the parties involved in adoption are normally kept confidential. However, many times the birth parent or parents and the adoptive couple agree to an "open adoption." Such a procedure allows the adoptive couple and the birth parent or parents to have direct contact and share certain information. While open agreements are recognized as a practical matter, open adoption agreements are not enforceable.
If an intermediary is used, he or she is required to file with the court prior to birth, a statement regarding the terms of any placement, whether or not there will be any financial reimbursements to the birth parent or parents, whether the adoptive couple has received a preliminary approval by a licensed professional or agency, and whether the prospective adoptive couple has a clear criminal and abuse registry clearance. An interview with the birth parents is required prior to placement. This interview must be conducted by an agency or licensed professional.
The birth parent or parents are required to submit their medical and personal histories. This also includes any documentation regarding their present or past marital status. The adoptive parent or parents are also required to submit medical and personal histories as well as personal references, marriage certificate and divorce records, if applicable.
For a child to be available for adoption, the consent of the birth mother must always be obtained. It is also necessary to have a consent from the birth father if the child was conceived while the birth father was married to the birth mother, supported her financially in a repetitive customary manner, the father has acknowledged in writing he is the father of the child, the child is his child by adoption, or if paternity of the child was established in a separate court proceeding. If the birth father does not fit into any one of the above categories, then his consent may not be required and may be excused by the court. It is always the best practice however to obtain the consent of the birth father to avoid any discrepancy in any information which may have been provided by the birth mother. When in doubt, it is best practice to obtain from the court an order waiving the father's consent by reason of abandonment or other statutory criteria.
The official consent form for an adoption can only be signed by the birth parent or parents after the child is born. Any consent signed prior to the birth of the child is invalid. Any consent signed by a birth parent becomes irrevocable when signed and may not be set aside unless a court of competent jurisdiction finds that the consent was entered into under fraud or duress. In order for a consent for adoption to be valid, the consent must be signed and witnessed by two separate individuals and notarized. The notary may also be a witness.
In the State of Florida, a consent given by a minor birth parent is valid. However, care should be taken that the minor birth parent has had a sufficient opportunity to explore his or her decision. Counseling should be offered in all cases but especially when the birth parent is a minor. If the child to be adopted is more than 12 years of age, he or she must also consent to the adoption.
If the child to be adopted is six months of age or older, and has been living with a grandparent, then that grandparent must be given notice of any pending adoption. Additionally, in the circumstances where the child to be adopted has lived with a grandparent for a period of six months, the grandparents as a matter of law, must be given first priority to adopt the child should they so desire. However, this does not apply if the adoption is a result of the death of the child's parent and a different preference is stated in the parent's will.
Certain expenses are properly payable by an adoptive couple to a birth parent. These expenses include doctor, hospital, and prescription bills, housing, food, clothing, and other ordinary and necessary expenses. Any agreements regarding the payment of such expenses should be in writing. Payments or promise to pay the birth mother for the transfer of the child is illegal. However, the payment of reasonable medical and living expenses including counseling expenses are legal. If the birth parent does not consent to the adoption after the child's birth, any expenses paid in advance may not be recoverable. All expenses, including attorney's fees and intermediary fees paid by the adoptive parent or parents must be reported to the court for approval.
As long as the adoptive couple has an approved home study by an agency or licensed professional, the child can be placed directly into the home by the intermediary upon release of the child from the hospital and after the signing of the appropriate consents by the birth parents. This process normally occurs between two and four days following birth. Once a placement is made into the home of the adoptive parent or parents, a supervisory period of ninety days is required under Florida law. During this time, the agency or licensed professional has an opportunity to monitor the child's care and progress in the home of the adoptive parent or parents. A Petition for Adoption can be filed at any time after the placement. However, a Final Judgment of Adoption cannot be entered until after the ninety day period has expired and after the agency or professional has filed a final recommendation approving the placement with the adoptive parent or parents.
Once a Final Judgment of Adoption has been entered, it cannot be set aside unless a procedural defect or irregularity occurred and the Final Judgment is appealed within one year of the entry of the Final Judgment. An example of a procedural defect would be a failure to give appropriate notice to a birth father or grandparent.
If you decide to look into the possibility of an independent adoption, you should consult an attorney who specializes in adoption to make certain that you understand all aspects of the adoption process. The birth parent or parents have been known to change their minds even after the consent for adoption has been given. Unnecessary court battles have been fought over custody of a child being adopted as well as over the financial loss sustained by the adoptive parent or parents.
In any adoption, for your protection and for the protection of the minor child, it is most important to have proper legal representation. An attorney cannot represent the birth parent(s) and the adoptive parent(s). Every party to an adoption must be independently represented.
If you believe you need legal advice, please call your attorney. If you do not have an attorney, call The Florida Bar Lawyer Referral Service at 1-800-342-8011, or the local lawyer referral service or legal aid office listed in the yellow pages of your telephone book.
(updated 3/27/97)