Adoptive Parents FAQ
Call Us At: (805) 962-0988
Toll-Free Birth Mother Hotline:
800-350-5683

dad-sm.jpg1. What kind of adoptions do you handle?
     We handle all kinds of adoption cases, including independent and agency adoptions, stepparent adoptions, second parent adoptions, and adult adoptions. We can also assist with the legal services in international adoptions.

 

2. How long have you been handling adoption cases, and how many have you handled?
     We have been handling adoption law cases for over 35 years, and conservatively estimate that we have handled over 3000 cases in that time.

 

3. What is the difference between an agency adoption and an independent adoption?
     In an agency adoption, the birth mother signs something called a "relinquishment," which terminates her parental rights, and makes the adoption agency the legal custodian of the child. The agency then places the child for adoption with an appropriate adopting family. Although these days, most agencies will allow the birth mother some input into what family is selected, it is still the agency, not the birth mother, who is placing the child for adoption.

     In an independent adoption, the birth mother selects the adopting family personally, and places her child with that family personally, without an agency being involved in the process. Instead of signing a "relinquishment," she signs something different called a "consent," which does not terminate her parental rights, but does indicate her permission for the adopting family to adopt the child.

     In recent years, a number of agencies have begun offering a hybrid adoption, which has many of the attributes of both agency and independent adoption, and these are often referred to as "identified adoptions," or "collaborative adoptions."

 

4. Are independent adoptions unusual?
     No, in fact, in California, independent adoptions are the norm, and agency adoptions are the exceptions. It has been widely reported that 86% of all adoptions of newborns in California are independent adoptions. Independent adoptions are legal and widely accepted in all states except Colorado, Connecticut, Delaware, Massachusetts, and North Dakota. In those few states, it is necessary to structure the adoption through an agency.

 

5. What is the average wait to obtain a baby by independent adoption?
     There really isn't an average wait, as placements do not occur on a first-come-first-served basis. We have prospective adopting families prepare and submit a profile or resume, which we then show to birth mothers so that they can make meaningful choices among their options. Some profiles are picked immediately, the record currently is just three hours. Other profiles are picked only after long delay, and some are never picked at all. However, we can say that a majority of our couples are matched with a birth mother within one year from the date we receive a completed resume or profile.

 

6. What is the average cost for an independent adoption through your office?
     The costs vary widely, but the average is about $22,000.00, all-inclusive, for an adoption where all parties reside in California, and $27,000.00 plus travel expenses where the parties reside in different states. These average costs include medical bills, counseling bills, legal bills, living expenses of the birth mother, and governmental fees such as the home study. Interstate adoptions are more expensive because there are two or three layers of bureaucracy to deal with instead of one, and in most states it is necessary to hire a lawyer in the other state. Interstate adoptions also involve more paperwork, red tape and delay, because of something called the Interstate Compact On The Placement of Children.

     Starting in December of 2005, a new insurance policy became available to cover the costs of an attempted adoption.  Reportedly, the policy covered not only a change of mind by a birth parent, but also a miscarriage or stillbirth.  This policy was only available to the clients of attorneys who are members of the American Academy of Adoption Attorneys or the Academy of California Adoption Lawyers.  If one purchased the insurance policy, and the birth mother changed her mind about the adoption plan, the insurance would reimburse the adopting family's loss, subject to the terms and limitations of the policy.  However, we received word in late November, 2007, that the policy had been withdrawn, due to "adverse market conditions."  We are hoping that the policy will be reinstated at some point, and continue to monitor the matter closely.  Watch this space for further developments.

 

7.  I have heard that there is a federal adoption tax credit that may reimburse part of the cost of an adoption.  How does that work?

     We are not tax lawyers, and do not give tax advice, but it is our understanding that for qualified adopting parents, there is a tax credit in the base amount of  $10,000. available to adopting parents, which may offset most or all of the cost of an adoption. 

     A tax credit is much better than a deduction.  For example, if a family is in a 33% tax bracket, a $10,000. credit is as beneficial as a $30,000. deduction.  In an independent adoption, the credit is claimed in the year in which the adoption is finalized, and was originally available to families with adjusted gross income less than $155,000.  For families making more than $155,000., but less than $195,000., the credit was reduced pro rata, hence, a family earning $175,000. would be able to claim a credit of $5,000. 

     These figures are indexed, which means that they are adjusted annually to account for inflation.   Although the credit was a "refundable" credit for years 2010 and 2011, since 2012 the credit is no longer refundable.  This means that if the entire credit cannot be claimed in the year of finalization, the remainder of the credit has to be carried forward to the next tax year, and can in fact be carried over for up to five years.  Again, however, we are not qualified to give tax advice, and it is critical that a tax expert be consulted regarding the precise terms and limitations of the adoption tax credit.

     The federal adoption tax credit was subject to a "sunset" provision, which means that it was scheduled to expire at the end of 2012 unless Congress acted to extend it.  However, on January 2, 2013, Congress acted to renew the adoption tax credit, and to make the credit permanent.

     This was a compromise, and, sadly, does not make the credit a refundable credit, but we are pleased that our clients who qualify will continue to receive this significant tax benefit.  The lobbying effort to make the adoption tax credit permanent was spearheaded by the American Academy of Adoption Attorneys, an organization of which Mr. Donnelly was a charter member, and in which he remains very active.

      The maximum credit for adoptions finalized in 2015 is $13,400.00, begins to phase out for those earning $201,010, and is completely phased out for those earning $241,010.00 or more.

       For 2016, the maximum credit is $13,460 per child, begins to phase out for those earning $201,920, and is completely phased out for those with an adjusted gross income of $241,920 or more.

       For 2017, the IRS has announced that the maximum credit is $13,570 per child, begins to phase out for those earning $203,540, and is phased out completely for those with an adjusted gross income of $243,540 or more.

     The tax credit makes adoption an affordable option for many families who could not afford to adopt otherwise.  An adopting family should discuss this credit with their tax adviser, as the rules governing the tax credit are quite complicated, and we are not qualified to give tax advice.

 

URGENT MESSAGE:  On June 24, 2016, Speaker of the House Ryan released his legislative plan for 2017, which included an elimination of the Adoption Tax Credit!  It is urgent that each person who reads these words must contact their Congressperson to express your support for a continuation of the Credit.  The Adoption Tax Credit has a negligible impact on the federal budget deficit, but it has a huge impact on the welfare of children and the families who love them.  There are much better ways to reduce the budget deficit than to harm the children who are our most vulnerable citizens; or to damage those who wish to provide a loving home to a child in desperate need of a loving home.  We will post updates and new information in this space as matters develop, so watch this space for updates.

 

8. I have heard that the birth mother has six months to change her mind in California. Is this true?
     No, California law has never given the birth mother six months to change her mind, that is a myth that was repeated in the media so often that many took it to be gospel. Starting in 1995, California law gave the birth mother up to 90 days to change her mind, however, she could waive the 90 days if she wished.  In 2002, the law was changed to  shorten this time period to 30 days, and the birth mother can, under most circumstances, waive the 30 day revocation period.

 

9. Is it common for a birth mother to change her mind and take the child back from the adopting family?
     No, it is very rare indeed, at least if you know what you are doing and exercise great care. With proper handling by an experienced adoption professional, the risk of such a disaster is rather minimal. In the 35+ years we have been doing independent adoptions, and in well over 3000 cases, we have had a total of only thirteen "takebacks." In two of those cases, the adopting parents found the birth mother themselves prior to retaining our services, and after talking with the birth mother we urged the adopting parents to abandon the adoption before they were hurt, but they chose not to listen to us. We do not think those two cases should count, thus, in reality, we have seen just eleven "takebacks" in well over 3000 cases over 35 years, or a rate of less than one-half of one percent.

 

10. Is the birth father's consent required in all cases?
     Actually, the birth father's consent is required in only about 20% of all cases, and in the remaining 80% of the cases his consent is not necessary. To generalize, his consent is required if: (1) he has married the mother, (2) he has received the child physically into his home and has publicly acknowledged paternity, (3) he and the mother have both at the hospital signed a special California state form in which they both agreed that he was the father, or, (4) he has done everything he can to take responsibility for the child, both financially and emotionally, during the pregnancy. These cases sometimes turn on subtle distinctions of fact, therefore, it is imperative that anyone considering an adoption have the facts thoroughly reviewed by an experienced adoption lawyer to determine whether the father's consent is required.

     Please also be aware that, even if the father's consent is not required, California law still requires that he be notified of the adoption, and the law gives him the right to file a lawsuit if he wishes to object to the adoption. However, if his consent is not necessary, and if he files a lawsuit to oppose the adoption, the law says that he will lose that lawsuit unless the court finds that the child is better off with him than with the adopting parents. In other words, it is a "best interest" test, and the court simply looks at the birth father, and then looks at the adopting parents, to determine who can provide a better home for the child. Under such a comparison, the single, unwed birth father will usually be found to have less to offer to the child, with the result that he loses the case and his parental rights are terminated.

 

11. Is it legal in California to pay a birth mother's living expenses?
     Yes, it is both legal and customary, with some limitations and conditions. California law provides in Penal Code § 273, that it is legal to assist with a birth mother's reasonable and necessary pregnancy-related living expenses, for the period of time that she is disabled or unemployable due to the pregnancy. This payment of expenses must be made unconditionally and as an act of charity, otherwise, it could be considered buying the baby. There are some subtle and difficult issues connected with the payment of birth mother living expenses, so be sure to talk to us about this prior to paying or committing to the payment of any expenses to or for a birth mother.

 

12. Does a birth mother get any counseling in an independent adoption?
     Yes, in fact, the law provides that the adopting parents are required to offer the birth mother counseling, at the expense of the adopting parents. This statute says that they must offer to pay for at least three counseling sessions, although we generally recommend more than three sessions. We typically hire the best qualified counselor or therapist in the birth mother's community, so that it is convenient for her to go to the counseling sessions. We strongly encourage counseling for birth mothers, and have done so for over 35 years, including 16 years before the law went into effect in 1995, requiring the offering of counseling to a birth mother.

 

13. Who do you represent, the birth mother or the adopting parents?
     In most cases, we represent the adopting parents, but sometimes we are hired to represent the birth mother. In each case, California law requires that the birth mother be offered separate legal counsel of her own, to look after her interests. She is not required to have a lawyer, and may waive legal counsel, but she must be  offered legal counsel at no expense to her, in each case. The law requires the adopting parents to offer at least $500.00 for this purpose, but they may agree to pay more.

     Although California law allows one lawyer to represent both the birth mother and the adopting parents simultaneously, this is quite controversial and is frowned upon by most courts, and we will not handle "dual representation" cases. 

 

14. How should an adopting family select an adoption lawyer?
     There are a number of factors one should consider. First, how experienced is the lawyer? Second, does the lawyer belong to the professional certifying organizations, such as the American Academy of Adoption Attorneys, or the Academy of California Adoption Lawyers? Third, does the lawyer exhibit a commitment to an ethical practice? Fourth, are you able to communicate with the lawyer, i.e., does he or she promptly return your phone calls and respond to your correspondence? Fifth, is the lawyer's fee structure fair, reasonable, and clearly explained? Sixth, are you comfortable with the lawyer's philosophy of adoption, when it comes to such issues as how "open" an adoption should be?  Seventh, is the lawyer a member of the Better Business Bureau?

     One of the greatest mistakes some families make is the assumption that it is important to have a lawyer who is nearby geographically. Actually, one is better off with an excellent lawyer at the opposite end of the state, than with a mediocre lawyer next door. Between long distance phone service, email, and overnight delivery services such as Federal Express, the disadvantages of distance are really rather minimal.

 

15. How does the Donnelly Law Office measure up on these considerations? 
     We have been handling adoptions for over 37 years, and Mr. Donnelly is a past president of the Academy of California Adoption Lawyers, and a charter member of the American Academy of Adoption Attorneys. He was the principal author of the Code of Ethics of the American Academy of Adoption Attorneys, and served two terms as Chairman of the Ethics Committee of that organization. He also wrote the Code of Ethics for the Academy of California Adoption Lawyers, and served over 17 terms as Chairman of the Ethics Committee of that organization.

     Except in those rare instances when Mr. Donnelly is in trial or out of town, every client call is returned on the same day, and he does not go home at night until all calls have been returned.      
     Unlike most adoption lawyers, the Donnelly Law Office does not charge high flat-rate fees for adoptions, and all services are billed by the hour, which usually results in a significantly lower fee, and a fee more closely related to the difficulty and complexity of the case at hand. 

     He is also a long-time member of the Better Business Bureau, and has earned that organization's highest rating, A+, for fair and ethical business practices.

 

16. If we are interested in moving forward with an adoption through your office, what do we do?
     The first step is to schedule an appointment, so that we can get together and discuss the specifics of your situation. This meeting serves a number of purposes. First, it allows us to understand your specific situation and goals, so that we can determine the best means to meet your adoption objectives. The meeting also is important so that you can have all your questions answered, as independent adoption is not inexpensive and is not free of risk. Adoption is not for everyone. It is important that you understand the adoption process before you get deeply involved, in order that you might make an informed decision as to whether independent adoption is the right method of adoption for you.