By Lisa Dougan, Juris Staff Writer
Recently, Pennsylvania joined a growing number of states in enacting a law and amending the Pennsylvania Adoption Act to make open adoption contracts binding. Senate Bill 1360 Post-Adoption Contract Agreements was signed into law by Governor Edward Rendell on October 27, 2010 and goes into effect on April 27, 2011. Previously, any voluntary future contact agreement made between birth and adoptive parents in Pennsylvania was not legally binding or enforceable by the courts. This new law, however, completely changes that concept. Beginning next month, the voluntary contact agreements will be legally binding on the parties involved in both private and public adoptions when approved by the court.
Under this new law, both birth and adoptive parents must be given notice that they have the right to enter into a legally binding open adoption agreement. If such an agreement regarding future contact is consented to and entered into by all the parties involved, it would be filed with the court as part of the final adoption decree. Any adopted child over the age of twelve must also consent to the terms of the agreement. These agreements will remain enforceable until the adopted child involved becomes 18 years of age.
If a party fails to comply with the terms of the open adoption contract, any other party to the contract may petition the court to enforce the terms of the contract. Failure to comply with the agreement cannot lead to the dissolution of the adoption, however, and monetary damages for failure to comply cannot be sought. Once the parties enter into the contract, the open adoption agreements can only be modified by the court upon petition of the adoptive parents or the child once he or she reaches 12 years of age.
The physical open adoption contract represents the official and legal acknowledgment of all parties involved in the adoption to the agreed terms regarding future contact. However, the meaning of the contract may run much deeper than that. A typical fear of birth parents is that the promises made by the adoptive parents prior to and during placement will not be honored in the future. The new availability of a court approved contract regarding future contact may provide some relief to birth parents in that all the parties are showing their good faith by entering into a legally binding contract with the option to petition the court to enforce the terms.
A goal of this new law is to encourage adopting, especially for older children who are in foster care. Many of these children fear adoption because they are scared of losing contact with their birth families. An open adoption contract ensures that these children will be able to maintain contact with their birth families and that it is acceptable to maintain that contact.
Because Pennsylvania is at the very beginning of the journey regarding legally binding open adoption agreements, it is unclear how many families will utilize this new law. Regardless, it is clear that all parties involved in such an agreement must be fully committed to the terms of the open adoption contract in order for the arrangement to be valuable and purposeful for the children and the parents. In some circumstances, open adoption agreements may not be appropriate at all. In any case, there is an ongoing need for loving and dedicated foster and adoptive parents to care for children whose birth parents are unable to do so and these open adoption agreements should be utilized as an available resource to enable positive relationships rather than as an inhibitor to the adoption process.
Lisa Dougan is a fourth-year evening student. She is a Staff Writer for Juris, a Comment Editor for the Duquesne Business Law Journal, and a member of the Corporate Law Society and the Women's Law Association. Lisa received a bachelor's degree in biochemistry and a master's degree in forensic science and law from Duquesne. She can be reached at ldougan46@yahoo.com.
