Open Adoption: Legally Binding, Legally Enforceable, or Legal Fiction?

An acquaintance and I were discussing open adoption recently and I asserted that I do not view open adoption as legally enforceable. She took an opposite view, which is fine, but I’m not convinced.

In my mind, to classify open adoption agreements as legally enforceable I would need some proof of at least one being enforced. That is someone somewhere would have to take their open communication agreement to court and a judge would have to say, “hey you agreed to this in writing and you need to follow through”. At present I don’t know of anything like that ever happening.

What we currently have in some states is what I call legally binding open adoption.  I differentiate this from legally enforceable, because post adoption communication agreements have been written into the law and the contracts are filed with the courts at the time of the adoption. However, it is possible (and dare i say common) for these legal contracts to be ignored.

Recently, however, an open adoption case in Nebraska serves as a reminder that in some states open adoption is still legal fiction. An adoption in progress was halted, relinquishments voided, and custody returned to the birth parents after a dispute over post adoption contact led to an almost  2 year court battle.

Because Nebraska law does not provide for ongoing post adoption communication except in cases of adoption from foster care the Nebraska Supreme Court,

 “will not recognize them and will instead continue to hold that relinquishments signed with the promise of such an open adoption are invalid.” (Nebraska Supreme Court as quoted by Skelton, 2015)

Because this case was initially brought to court based on a disagreement about the amount of contact occurring it seems to convey the importance of negotiating post adoption communication parameters prior to the adoption. While theoretical discussions will of course evolve once they become reality going in with conflicting expectations can quickly brew discord, as both couples in this case learned. However, based on the Nebraska law the opposite seems to be the outcome. Any discussion of post adoption contact could invalidate adoption plans based on a 1980s case that found relinquishments based promises of open adoption are the result of coercion.

It should be noted that this adoption plan appears to have been created without the assistance of adoption professionals who might have been aware of these legal issues. It should also be noted that the adoption was not finalized and thus the Wissmanns were the child’s potential adoptive parents or pre-adoptive parents, which leaves one to wonder how this case would have been different (or would it have) if the adoption had been finalized before the Sellers contested it.

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