International adoption is when parents living in the United States adopt a child living in another country. International adoption is also known as foreign adoption or intercountry adoption.
Adoption law is complex, dealing with both legal and social welfare issues. International adoption law is even more complicated, as it deals with three bodies of law: U.S. law, the foreign country’s law, and international treaty-based law. Just from the U.S. side, prospective adoptive parents will need to navigate through several federal adoption laws, state adoption laws, and immigration laws to legally get their adopted child into the United States.
Apart from the laws of the individual country where the child lives, many international adoptions must also comply with the “Hague Convention on Protection of Children and Co-Operation.” The Hague Adoption Convention governs intercountry adoptions between the U.S. and other Convention member countries.
The treaty regulates the federal adoption agencies here and oversees adoption policies abroad. One of the main goals of the Hague Convention is to protect children, birth parents, and adoptive families from unethical adoption practices, including bribery and other forms of corruption, child abduction, and hidden fees.
Where do foreign adoptees come from? Children have been adopted from practically every country in the world. In recent years, foreign adopted children have often come from China, India, Ethiopia, and Nigeria.
In recent decades, the leaders of Ethiopia, South Korea, Russia, and Guatemala (all countries that previously sent a large number of children to the U.S. for adoption) have banned or severely cut back on international custody transfers. The bans are placed for political reasons or following sex trafficking and kidnapping incidents.
What is the Process of International Adoption?
The first step is choosing a U.S. and a foreign adoption agency to work with. Usually, the prospective parents choose a U.S. agency with ties to an adoption agency in a foreign country. It cannot be stressed enough that it is important to research the agencies as best you can, particularly being on alert to any allegations of fraud in any of the agency’s past adoptions. The U.S. Department of State collaborates with other adoptive authorities worldwide to reduce the number of fraudulent adoptions.
The next step is to get a home study done, certifying that the parents are fit to adopt a child; this is done by a U.S. adoption agency. An adoption application will be completed, which must be accompanied by a lot of supporting documentation. If approved by the foreign government, prospective parents will adopt the child under the foreign country’s law.
While working on the foreign side of the adoption, the parents will apply to the United States Citizenship and Immigration Services (USCIS) for a visa for the child. There are three methods for U.S. immigration through adoption:
- The Hague Process: if the child habitually resides in a country that is a party to the Hague Intercountry Adoption Convention
- The Orphan Process: (non-Hague): if the Hague Intercountry Adoption Convention does not apply
- Family-Based Immigration: if the child is a family member of a U.S. citizen or permanent resident
Once the adoption is completed abroad, the visa application may be submitted to the nearest U.S. embassy, and assuming the application is correctly submitted along with the necessary documents, the child will be permitted to enter the United States.
Once the child is in the United States, the parents will want to re-adopt it under their state’s law. When they do, the child will become a U.S. citizen.
What Are the Applicable Laws for Bringing an Adopted Child Into the U.S.?
For a foreign child to be admitted to the United States, the child must be found eligible by the USCIS, the same federal body overseeing immigration law processes. Unless the USCIS approves and decides that the parents are eligible for international adoption, the child will not be allowed to enter the US. The basic federal requirements for adopting a foreign child are as follows:
- The adoptive parent must be a U.S. citizen.
- An unmarried person wishing to adopt a foreign child must be at least 25.
- Married couples must jointly adopt the child.
- The applicant must pass criminal and other background checks.
- The prospective adoptive parents will also need to meet legal requirements established by the state in which they reside.
What Situations Can Endanger the Adoption?
In almost all circumstances, it is preferable to go through the adoption process with the assistance of an experienced international adoption attorney. Growing or creating a family is one of the most significant events in your life. You must ensure your adoption adheres to foreign, state, and federal laws.
There are several reasons a court may terminate someone’s parental rights after the adoption is complete:
- Evidence arises that the birth parent did not consent to the adoption
- The parent has abused or neglected the child
- The parent is unwilling or unable to provide a safe home for the child
- The parent has abandoned the child
- The parent will be incarcerated for a long period
An experienced attorney can help you defend your parental rights if you are at risk of an involuntary termination.
What Is the Role of a Lawyer in an International Adoption?
While prospective adoptive parents may see adoption primarily as an emotional process that formalizes a parental bond, it is also a legal process. The parent/child relationship is one of the most important bonds; therefore, the courts want to ensure that the legal procedures are followed completely. The main reasons to have attorneys involved in the adoption process are to prevent failure to meet a foreign, state, or federal law and to prevent fraud.
Keep in mind that the day-to-day involvement of the adoption lawyer will depend on the type and details of the adoption.
If you work with an adoption agency, they will coordinate your attorney services. However, if you are doing an independent adoption, you must be proactive and diligent in hiring your own international adoption attorney. An adoption lawyer will play a greater role in an independent adoption than a domestic one.
In an independent adoption, the attorney will be responsible for ensuring that all of the legal requirements of the foreign country, your state, and U.S. federal law are complied with. This can include arranging for necessary home studies, running background checks, screening an international adoption agency for help in courts abroad, helping you complete U.S. and foreign applications, helping you gather necessary documents, and many other tasks.
When Do I Need to Consult with A Lawyer?
If you are considering international adoption, it is important to seek out an experienced international adoption lawyer earlier in the process to be aware of the legal process. The lawyer can help you navigate through the different stages and bodies of law. They can also represent you during any legal proceedings or hearings you must attend.
