In the past, voluntary future contact agreements made between adoptive and birthparent in Pennsylvania were based on the honor system and were not legally binding, until now. On October 27, 2010, Pennsylvania Governor Edward Rendell signed Senate Bill 1360 Post-Adoption Contact Agreements into law. The new law, which goes into effect April 27, 2011, now makes the voluntary contact agreements for both public and private adoptions official and legally binding when filed with and approved by court.
This is not a new idea to PA legislatures as the U.S. Department of Health and Human Services recommended establishing a law which allows a court to approve contact agreements and make them legally enforceable more than 10 years ago. The Joint State Government Commission made similar recommendations in 2001 and 23 other states already have enacted similar laws and Pennsylvania now makes 24.
The new Pennsylvania law requires notice be given to both the birth and adoptive parents that they have the right to file an open adoption agreement with the court that would then be legally binding. The voluntary agreement created and agreed upon by both parties would be entered as a part of the final adoption decree. Children who are being adopted who are over the age of 12 must also consent to the terms of the future contact agreement.
An informal review conducted in several of the states with open adoption laws found that very few parties actually ever complained to the courts requesting enforcement of the agreed upon terms. Rather, the open adoption contract laws have served more of an official, legal acknowledgement of the agreed upon contracts to all member of the adoption triad.
According to adoption professionals in most cases in which future contract agreement are not being honored, it is on the side of the adoptive parents not following through on the promises made to the birth parents during the time of placement. This is often something birth parents making adoption plans for their children fear. By having a court approved contract, it is showing good faith on behalf of all parties that their true intentions are to remain dedicated to their promise to uphold the decided upon future contact agreement.
How are future contact agreements made legally enforceable?
This new law allows a voluntary agreement created and agreed upon by both birth and adoptive parents to be entered as a part of the final adoption decree which is then approved by the court granting the agreement official and legally enforceable. An affidavit made under oath must accompany the agreement affirmatively stating that the agreement was entered into knowingly and voluntarily and is not the product of coercion or duress. Agreements not filed with the court are not legally enforceable.
What if either party fails to comply with the agreements set in the contract?
Any of the parties member to the agreement may petition a court for failure of any of the other parties involved for complying with the court approved future contact agreement.
What are the consequences for not abiding by the agreement?
Most importantly to note is that failure to comply with the agreement CANNOT cause the dissolution of an adoption decree. The adoption which has already been finalization is not jeopardized in any way. Additionally, none of the parties involved in the agreement can seek any monetary damages in response to noncompliance of the agreement. Parties can only use legal avenues to have the agreement enforced.
How long are the contracts legally valid?
The contract ceases to be enforceable once the adopted child turns 18 years old.
Can agreements for future contact be modified?
Yes, only the adoptive parents or child once he/she reaches 12 years of age may petition a court with modifications to the agreement that was already approved by the court.
It is too early to tell whether or not an increase in adoptive and birthparents utilizing this new law to legalize future contract agreements will be seen. Regardless, AFTH strongly recommends and counsels both parties to carefully consider the promises they make and ability to uphold those agreements when entering into voluntary future contact agreements whether or not they will be filed with the court. Neither party should make agreements they are less than 100% dedicated to keep. In this way, the expectations of both parties for future contact are set forth from the beginning and no one will feel cheated after placement because those agreements are more likely to continue to be upheld as the child grows up.