Local Process and Requirements
Intercountry adoption is a form of adoption in which the adoptive parents are citizens of one country (the United States for our purposes), and the adopted child is the citizen of another country. The U.S. Department of State recommends adopting from countries that are parties to the Hague Convention, as the Convention offers further protections for adoptive families.1 The recommended process requires that the adopted child be formally adopted in its home country before entering the United States.2 Once the foreign adoption is complete, the adoptive parents must meet further requirements set by the United States Citizenship and Immigration Services (USCIS), the Department of Homeland Security, and the adoptive parents' home state.3 The Child Welfare Information Gateway has a helpful brochure to guide prospective adoptive parents through the process.4
Aside from choosing a country to adopt from and navigating the complex federal immigration rules, the adoptive parents need to be familiar with the rules and requirements in their home states, which vary greatly. As an attorney advising adoptive parents, you need to understand your state's requirements to insure that your clients', and their adopted child's, rights are secured. The international adoption process is lengthy and complex, may take years to complete, must be followed strictly to ensure there are no issues with the return of the child with its parents to the United States. For this reason, every attorney should proceed with extreme caution before becoming involved in an international adoption case.
Some states recognize the foreign country adoption as if it were granted in that state (known as full effect and recognition). In other states, the adoptive parents may have to go through a separate process of validation or readoption once they return with a child to their home state. This process requires presenting the adoption documents to a State court to make a finding that the adoption is acceptable under the state's law (validation), or to have the entire process re-approved by the state court (readoption).5 In twenty-four (24) states, validation or readoption is not required, but adoptive parents may elect to go through the process in order to secure inheritance rights or decrease the possibility of a challenge to the adoption in the state court.6 Thirty-three (33) states require documentation from a validation or readoption in order for a child to obtain a birth certificate from the State Registrar of Vital Statistics.7 For this reason, in most states the attorney will want to advise the client that validation of the foreign adoption or readoption is likely the best option to afford the most legal protection. It may also be necessary in cases where one parent is unable to adopt in a foreign country (in the case of a same sex relationship) but can be added as a parent via readoption in their home state. Child Welfare Information Gateway (recommended by U.S. Department of State) has a searchable link to state by state laws governing intercountry adoptions at: https://www.childwelfare.gov/topics/systemwide/laws-policies/state/.
Uniform Accreditation Act
The Uniform Accreditation Act became effective in July of 2014, and helps to protect intercountry adoptive families by ensuring that all state agencies handling intercountry adoptions are in compliance with federal law.8 The Act safeguards intercountry adoptions from the exploitation or sale of children, provides training for adoptive parents and agency personnel, and ensures fees charged are clearly explained. An accredited agency or person must be used, or the adoption process cannot be completed. This act applies to both Hague and orphan (non-Hague) adoptions.9 Because the accreditation requirement is so crucial to the intercountry adoption process, you must be sure your clients understand that they may only use accredited agencies or persons.
The reason for the Accreditation Act is apparent after reviewing case law. In one case, an American family attempted to adopt a child from Uganda. The family contracted with Americans for African Adoptions (AFAA). The family (the Hesleps) were advised that a child was available for adoption after the death of his parents. The Hesleps completed a home study and began supporting the adoptive child. The Hesleps travelled to Uganda, but were unable to secure a visa when the embassy found irregularities in the child's documents, specifically the death certificates of his parents. The Hesleps were ultimately informed that AFAA's agent in Uganda had forged the documents and that the child's parents were still alive.10 Although a clear basis for legal action was established, a monetary award would hardly make the plaintiffs whole after this emotional experience.
Process and Requirements for Placing Countries
The process for intercountry adoptions is a complex and lengthy process, even more so than domestic adoptions. For attorneys and their clients, it is imperative to know the appropriate steps and required documents. If the proper steps are not taken, the adoption could be denied by the child's home country or the adopted child could be denied legal status as a resident in the United States. The process is especially delicate, as it involves not only an adoption, but permission to bring a new resident and citizen into the United States of America. Adoptive parents must take the following steps to complete an intercountry adoption (Hague Convention countries):
1. Choose an accredited adoption service provider in your state (pursuant to the Uniform Accreditation Act).
2. Prepare and submit form I800A11 USCIS Determination on Suitability to Adopt a Child from a Convention Country. The application requires a home study, fingerprints and background check.
3. Apply to authorities in your selected country of origin to adopt, and to be matched with child. You must advise your client not to proceed with the foreign adoption at this time.
4. Submit form I800 12 to USCIS for the child to be found eligible to immigrate. Submit a visa application to the agency responsible in the child's country of origin. Once the forms are approved, the adoptive parents may proceed with the foreign adoption.
5. Adopt the child within the country of origin.
6. Complete the visa application and bring the child home.13
The adoptive parents will also need to secure a birth certificate, passport and visa for the child from the home country before entering the United States. Once the new family arrives in the United States, the adoptive parents will need to file the N-60014 Application for a Certificate of Citizenship. The adopted child is not considered a lawful, permanent resident until the adoption is final, pursuant to state requirements discussed above.15
The U.S. Department of State provides information about the requirements for all countries on their website at: http://travel.state.gov/content/adoptionsabroad/en/country-information.html. The site also provides notices and alerts regarding specific countries when applicable.16 For example, a visit to the website and a search under the country of Belgium reveals that Belgium is a party to the Hague Convention. However, adoption from Belgium is extremely rare, unless in the case of a family member adoption. Belgian law requires that applicants to adopt be married, registered as cohabitating, or living together for at least three years.17 In addition to a discussion of the subject country's participation with the United States in intercountry adoption and its own laws, the Department of State website also lists contact information for the subject country's relevant agencies.18 The Department of State is an invaluable resource when advising clients of their ability to adopt from a particular country. Another helpful resource is the Child Welfare Information Gateway. Their published fact sheet can help families understand the difference between adoption from Hague v. Non-Hague countries.19
Risks Associated with International Adoption
Intercountry adoption is seen as an attractive alternative for some in the United States, either because of difficulty finding suitable adoptable children in this country or because of cultural ties to other countries. However, charges of fraud and human trafficking, and stories of adoptees being forcibly taken or stolen from their relatives have plagued the practice.20 These are the issues the Uniform Accreditation Act is trying to minimize.
In addition to child trafficking fears in the places where intercountry adoptions occur, another form of child trafficking is taking place here in the United States after the adoptions are approved. In a disturbing trend, unprepared adoptive parents are electing to, "re-home," their adopted children when the children's mental and physical ailments prove to be too trying for the adoptive parents. The practice occurs outside of the court system, and requires no home study or background checks.
The, "re-homing," process is legal, as the adoptive parents are able, as the legal parents, to hand the adopted child over to another, appointed as guardian.21 New York judge, Hon. Edward W. McCarty, III, preemptively ruled that adoptive parents could not re-home their adopted Russian children without court approval.22 The adoptive parents appeared before the judge in a bid to vacate the adoption of the children. Cognizant of the re-homing practice and fearful that this would be the next step for the adoptive parents, the judge entered an order restricting the practice.23 In April of 2014, Wisconsin became the first state to outlaw advertising children over one year of age for custody transfer, hoping to eliminate the practice of online postings to, "re-home," children.24 Wisconsin is also considering requiring foreign adoptions to go through the readoption process (as discussed above), in order to account for all children coming into the state.25 Practitioners should be especially diligent in advising clients of the challenges that all adoptions can bring, especially intercountry adoptions requiring the adopted child to adjust to a completely new culture. Clients should be strongly discouraged from the practice of re-homing, as it can lead to serious, and even criminal, consequences.
United States Citizenship and Immigration Services (USCIS)
The United States Citizenship and Immigration Services (USCIS) is responsible for approving adoptive parents for eligibility to adopt, and for approving adopted child for immigration to the United States.26 This agency is responsible for issuing the Certificate of Citizenship, once the adoption is finalized.27
The Hague Certificate
An Apostille is a certificate issued by a designated authority in a countries that are parties to the Hague Convention. Apostilles authenticate the seals and signatures of officials on public documents such as birth certificates, court orders, or other documents issued by a public authority, so that they can be recognized in foreign countries that are parties to the Convention. In the United States, there are multiple designated Competent Authorities to issue Apostilles. The authority to issue an Apostille for a particular document depends on the origin of the document in question. State documents such as notarizations or vital records are authenticated by designated state authorities, usually the state Secretary of State.28 The purpose of the apostille certification is to prove the authenticity of government documents in other Hague countries and hopefully to avoid fraud. Federal court documents can be certified by the clerk of the federal courts. State documents can be certified by the approved state agency, typically the Secretary of State.29
1 Hague v. Non-Hague Adoption Process, http://travel.state.gov/content/adoptionsabroad/en/hague-convention/hague-vs-non-hague-adoption-process.html (last visited April 6, 2015).
2 http://travel.state.gov/content/adoptionsabroad/en/us-visa-for-your-child/hague-visa-process.html (last visited April 6, 2015).
3 State Recognition of Intercountry Adoptions Finalized Abroad, https://www.childwelfare.gov/pubpdfs/intercountry.pdf (last visited April 6, 2015).
4 See Appendix A.
8 http://travel.state.gov/content/adoptionsabroad/en/adoption-process/faqs/faq-the-universal-accreditation-act-of-2012.html (last visited April 6, 2015).
10 Heslep v. Americans for African Adoption, 890 F.Supp.2d 671 at 676-7 (N.D.W.Va. 2012).
11 See Appendix B
12 See Appendix C
13 http://travel.state.gov/content/adoptionsabroad/en/us-visa-for-your-child/hague-visa-process.html (last visited April 6, 2015).
14 See Appendix D
16 http://travel.state.gov/content/adoptionsabroad/en/country-information.html (last visited April 6, 2015).
17 http://travel.state.gov/content/adoptionsabroad/en/country-information/learn-about-a-country/belgium.html (last visited April 6, 2015).
19 See Appendix E
20 Kevin Voigt, International Adoption: Saving orphans or child trafficking? CNN (Sep. 18, 2013 at 2:41 PM) http://www.cnn.com/2013/09/16/world/international-adoption-saving-orphans-child-trafficking/.
21 Traster, Tina, Judge: Re-homing Kids is Trafficking, The Daily Beast (Dec. 30, 2014), http://www.thedailybeast.com/articles/2014/12/30/judge-rehoming-kids-is-trafficking.html.
26 Adoption, http://www.uscis.gov/adoption (last visited April 6, 2015).
28 http://www.travel.state.gov/content/travel/english/legal-considerations/judicial/authentication-of-documents/notarial-and-authentication-apostille.html (last visited April 12, 2015).
29 http://www.hcch.net/index_en.php?act=authorities.details&aid=353 (last visited April 12, 2015)
Keywords: International Adoption, Intercountry Adoption, Hague Convention