What You Need to Know About Birth Parent Relinquishment Laws and Revocation, and Why You Need to Know It!

March 3, 2011 | By:

Today is a day on which I usually hide under the covers.  Fortunately, I have the flu and have an excuse to hide from the world.  Although for the first time in many years I don’t think I really need or want to hide.  Progress and peace do come, although sometimes long after we experience a loss or a setback on our path to parenthood.

Today is the birthday of one of my children.  For privacy reasons I am going to call him James, but that isn’t the name we gave him.

On this day several years ago my husband and I, and our son, were racing in our car to meet a birth mother who was in labor.  I had been talking with this birth mother for many months and we had a solid and even loving relationship.  I felt a special bond with her and I was thrilled when she invited me to attend her baby’s birth.  Unfortunately, my husband and I just missed James’s birth, but we were there with his birth mother within hours of his arrival in this world.

While nurses frantically attended to James’s birth mother due to complications from his birth, my husband and I sat on a couch in the family area of the maternity center and held our new son.  Aware of my plans to breast feed James, a breast feeding specialist came by to help me get James settled and contentedly nursing.  Later that evening the social worker from our adoption agency arrived and after getting checked out by the attending pediatrician and approved for discharge, the social worker went in to sit with James’s birth mother and discuss whether she was ready to sign her relinquishment forms.

Every state law varies as to when a birth mother can sign these documents — most states require that birth parents have to wait a day or even more after the baby’s birth before the birth parents can sign the appropriate legal documents.  Under the laws of the state that was governing our adoption, James’s birth mother could sign her relinquishment papers at any time after he was born.  She had a relatively short period of time after signing them in which she could choose to parent and after that period of time her parental rights (and those of James’s birth father) would automatically be terminated.  She could also choose to appear in court before the time period had ended and relinquish her parental rights even earlier.  We had discussed it many times and she had decided to appear in court; she didn’t want to feel the pressure of waiting for the days to pass before the adoption was irrevocable.

After what seemed like an endless visit, our social worker came out and told us that James’s birth mother had signed the papers and we could go home with James that night!  We were told his birth father had already signed the papers earlier that day. Elated but still nervous, my husband packed up our things and collected our older son’s toys off of the floor where he was playing, while I finished breast feeding.  I visited with James’s birth mother and we said a very tearful goodbye.

Exhausted from a long drive and a very emotional day, we drove to our hotel now a family of four.  The next several days were a blur while we waited for ICPC approval to drive home.  When you adopt a child from a state that is different from where you live, The Interstate Compact on the Placement of Children (ICPC) requires that both the state in which the child is born and the state where you live approve the adoption; each state reviews all of the requisite paperwork to ensure that it complies with the law and once you have approval from both states you can travel home.  It seemed like we were in a state that had a very slow ICPC office.

Anyone who has gone through it knows that living in a hotel with a newborn while waiting for ICPC approval is excruciating.  We filled the days with a visit to a local pediatrician, introducing our older son (still an infant himself) to his new brother, meeting James’s birth grand parents, and with me learning to juggle breast feeding two babies.  Several days after bringing James home, while we were getting up in the morning and getting organized for another day of waiting for ICPC approval, the phone rang.  My husband and I both jumped for the phone assuming it was our social worker calling to tell us we had received approval to go home.  We were not so lucky.

She was instead calling to say that James’s birth mother had changed her mind and chosen to parent.  She wanted James.  His birth father still supported the adoption plan but wanted to support the mother of his son.  He thus advised our adoption agency that he too was choosing to parent.

Devastated and frightened, we spoke with the attorney from our adoption agency to review our legal options.  The good news was that the laws of the state governing our adoption were very favorable to adoptive parents.  Some states automatically return a baby to its birth mother or father when she/he chooses to parent and the adoptive parents face an uphill battle to regain custody and adopt the baby.  It was the reverse for us.  If we chose to fight to keep James, his birth parents were facing an uphill battle to prove that they would provide a safe and loving home for James.

After talking about it with our attorney and our social worker, and having a long heart to heart conversation, my husband and I agreed that we wanted to honor James’s birth mother’s decision.  Although we were heartbroken beyond measure, we knew in our hearts that this was what was best for James.  I packed up a small bag of things that James liked and that would smell familiar to him.  I breast fed him one last time and told him how much we loved him and that he would always be a part of my heart.  Crying, I tucked him into his car seat and my husband handed the bag and the car seat to our social worker.  She too was crying.

And James went back to his birth family.

No longer restricted by ICPC laws, we immediately packed up the car. The drive home seemed endless.   I sat in the back seat with our other son, unable to think.  The entire car ride I don’t think my husband or I said a word to each other.  We weren’t angry, we were just very, very sad.  I saved a small photo album of pictures of all of us, and a box with some of the clothes he wore when he was with us.  When I got home and walked through the front door carrying an empty car seat instead of two full car seats, it hit me and it hit me hard.  I started grieving at a depth I didn’t even know existed.  There were a few days that I don’t know how I survived.  I think that had we not already had a child I wouldn’t have been able to deal with the loss of James.  It didn’t matter that I knew we made the right decision, it still felt like he had died.  That is, and was, the only way I could deal with my feelings.  For me, James died several days after he was born and every year on his birthday and on the day “he went back” I have hidden under the covers and grieved.

A few years ago I accidentally found out through our adoption agency that “James” is doing well and is living with his birth mother.  But that wasn’t MY James.  It was someone else’s child they were talking about.  My husband asked me if it made me feel better to know that he was safe and loved, and to be honest, it didn’t.  It didn’t make it better.  Sure I was glad he was healthy and happy but it wasn’t MY child who was healthy and happy.  MY child had died.  Even though we never regretted our decision, it still felt like he had died; and a piece of me died with him.

This year, however, for reasons I am at a loss to explain, it isn’t as painful as it used to be.  I woke up knowing exactly what day it is but the grief was not overwhelming.  I didn’t want to hide under the covers.  In fact, I wanted to go straight into my office and help someone have a baby, TODAY.  People have been telling me for years that it would get easier and I never believed them.  But they were right, finally the day has come when it is easier to bear his loss.

I sent my husband a text message a little while ago wishing James a happy birthday and then I kissed my daughter and my other son.  And I went on with my day trying to help someone get closer to being a mother or father.

I did not know much about relinquishment and revocation rights when I started pursuing adoption with my husband.  I knew that there was always a risk a birth mother could choose to parent — and for what it is worth, I have since learned that more than 98% of birth mothers and fathers who choose to parent, do so before the adoptive parent takes the baby home.  But I didn’t know that then and it wouldn’t have stopped us from taking James home from the hospital.  At the time, his birth mother seemed resolute in her decision to place James for adoption and that is all that I thought mattered.

I also didn’t know the importance or nuances of the laws regarding revocation of consent.  I am glad our adoption agency found such a good attorney for us, one who advised us regarding the advantages of using the laws of the state where we lived to govern the adoption rather than the laws of the state where James was born.  Although the outcome would have been the same, we would not have had any choice to fight for James had we used the laws of the state where he was born.  (For reasons other than those surrounding relinquishment and revocation, James’s birth mother elected to use the laws of the state where we lived rather than where she planned on delivering. Typically it is the birth mother’s choice as to what law will apply to your adoption plan).

I never thought I would need to take advantage of those laws, but when faced with the enormous decision of whether or not to fight for James it was comforting and important for us to know that while prospective legal proceedings would be taking place, James would live with us (his birth mother and father would be given regular visitation), and unless they had a very compelling case we were told we had a very good chance that a  Judge would determine that James would stay with us, forever.

Do I recommend going into your adoption with a contingency plan for what would happen if you were in my shoes?  Absolutely not!  Statistics and my own experience as an adoption attorney all indicate that what happened to us won’t happen to the vast, vast majority of adoptive parents.  But I did do something stupid in not knowing more about adoption and how the laws in various states would impact potential adoption plans.  It is really important to know when and under what circumstances a birth family can choose to parent, when the adoption becomes irrevocable and even more important for many prospective adoptive parents, how long it is before a birth parent can even sign the documents necessary to relinquish their parental rights.  If you know this information in advance, you might choose not to advertise in a state where the laws require you to wait a longer period of time for the relinquishment documents to become irrevocable, or choose to advertise in a state where relinquishment documents are irrevocable upon signing.

Knowledge and information are power.  If you are pursuing a domestic newborn adoption, find out about the laws of the states in which you are advertising or those of the states in which you live and where the birth parents live.  Talk to your adoption professional about what your options are at various points in time and think about what you can handle emotionally.  For most prospective adoptive parents, there has already been a period of infertility treatment and loss that has taken place before their adoption journey starts.  You may need to factor in what you’ve already been through when you are thinking about this stuff.  And please keep in mind that sometimes you don’t have a choice and you have to use a particular state’s laws.  But most adoptive parents don’t think about this first and don’t know what their rights are or what they could be if they made certain decisions.

I am always saddened by stories I hear of people being involved in adoptions where they had no awareness of the legal issues presented by the location of the birth parents, or of the legal implications presented by a birth father situation or the existence of multiple potential birth fathers.  Do your research before you start out or while you are going through the process.  Initiate conversations with the adoption professionals you are using as you are making decisions and taking steps along the path toward adoptive parenthood.

My husband and I were very lucky that our agency had selected such a good attorney who made some very good and practical decisions that benefited both James’s birth mother and us as we embarked on our adoption plan together.  It probably wouldn’t have changed anything had we not been so well-informed but I am glad that we did have all the information to make an educated decision.

James is where he belongs, safe in my husband’s and my heart and a very special scrapbook.  And there is a very happy little boy somewhere celebrating his birthday with his mother, just as it was, and is meant to be.  Happy birthday baby!

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  1. fertilemyrtle says:

    awesome blog!