Things to Know About the New Adoption Amendments
Kathleen M. Tana, Esq. on 06/10/2011
About The Author
Willig, Williams & Davidson. Ms. Tana focuses her practice in domestic relations and family law.
The new amendments to the Pennsylvania Adoption Statutes are both comprehensive and controversial. These amendments went into effect on April 27, 2011. At this point there seem to be more questions than answers - there is no consensus as to forms or procedures used to implement the amendments. Practitioners are strongly urged to contact their local adoption liaison in the court system to determine what additional forms and procedures have been added to their local adoption practice.
The amendments are known officially as the Post Adoption Contact Agreement Amendments ("PACA") as provided in SB 1360, Act 101 of 2010. (23 Pa. C.S. 2731, et seq.)
Purpose - The PACA Amendments were enacted to provide the means by which a post adoption contact agreement (commonly known as an “open adoption agreement”) can be legally enforceable in Pennsylvania. The amendments allow the adoptive parents and birth relatives to enter into a voluntary agreement for contact or communication.
Specifics - The specifics of the PACA Amendments outline the four conditions of any Post Adoption Contact Agreement. The agreement must:
- Be in the best interests of the child;
- Reorganize the parties' interest in, and desire for, post adoption communication or contact;
- Be appropriate in consideration of the parties' role(s) in the child's life;
- Be subject to approval by the courts.
Parties - The parties to a PACA may be:
- The prospective adoptive parents, and
"Birth relatives" of a child (defined as “a parent, grandparent, step-parent, sibling, uncle or aunt, of the child's birth family, whether the relationship is by blood, marriage or adoption.” (Pa. C.S. §2732) It should be noted that the statute extends the definition of “birth relatives” to include siblings, freed for adoption (via either dependency or termination of parental rights), when the prospective adoptive parent is not adopting all the siblings. In such a case, each sibling under 18 must be represented by a guardian ad litem. (23 Pa. C.S. 2733(b))
Lastly, any subject child of such a PACA, while they cannot enter into the agreement; if they are over the age of 12, the agreement cannot be entered into without the child's consent.
The specifics of the amendments begin to break down when the notification requirements are examined more closely.
- "Birth relatives" are defined fairly broadly in the statute as noted above, and all these birth relatives may participate in a PACA, but notice per the statute only need be given to the birth parents.
- There is no requirement to provide notice to a presumptive birth father.
Specifics of Notice
It should be noted that nowhere in the PACA is it specified when or how notice should be given. But the notice must be given and it must be approved by the court on or before the date the adoption decree is entered (23 Pa. C.S. §2738©(2)). Notice should be given in enough time to allow the birth parents to participate in the PACA before their 30 day revocation period has expired after they have signed consents.
The obligation to give notice is placed with the adoption agency (if the agency is acting as the intermediary) or “anyone representing the parties in an adoption” (defined as the attorney representing the adoptive parents).
The practitioner should also note that there is no distinction or exception made for adoptions filed before April 27, 2011 but not yet finalized. This means that these requirements may extend to cases already in the system; again, the practitioner should contact their local court to determine the procedure.
As of this writing, there are no specific forms to be used for PACAs. Likewise, there are inconsistencies in the application of the new amendments which have yet to be settled.
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