Open Adoptions in Utah & Postadoption
Contact Agreement Enforcement
Are postadoption contact agreements enforceable under Utah
law?
An open
adoption
agreement (often referred to formally as a postadoption contact
agreement) can be enforceable under Utah law only in cases where the
child to be adopted is in the custody of Utah's Division of Child and
Family Services. Often this will involve a child who is in foster care.
In order to be legally enforceable, a postadoption contact agreement in
Utah must be entered into and approved
prior to
the the entry of an order by the court finalizing the adoption. This
page provides general information regarding the requirements for a
valid postadoption agreements. If you are considering an open adoption
or postadoption contact agreement, obtaining good legal counsel and
assistance is strongly advised.
Contact
us today to see how we can help you.
Open Adoptions Generally

The
term "open adoption" often has informal connotations associated with it
as well as more technical legal meanings. In the most general sense, an
open adoption could involve simply informing both the birth parents and
the adoptive parents of each others' identities. In some open
adoptions, the birth mother or birth parents meet together with the
adoptive parents prior to placing the child for adoption or before the
adoption is finalized. The birth parents might want to get to know the
prospective adoptive parents before feeling comfortable making a final
placement decision.
The term "open adoption" can also refer to an adoption where a formal
agreement has been made between the adoptive parents and birth parents
or members of the adoptee's biological family allowing for
communication, visitation, or other contact between the birth parents
or family and the adopted child. In order to be enforceable at law,
this kind of postadoption contact agreement must meet various statutory
requirements and must be formally approved by the court prior to
finalization of the adoption.
Eligible Family Members
An enforceable postadoption agreement can only be made when the child
to be adopted is in the custody of Utah's Division of Child and Family
Services. The adoptive parents are essential parties to a postadoption
contact agreement. If the adoptive parents are not formal parties to
the agreement, the court cannot approve a formal postadoption contact
agreement.
Birth parents may be involved as parties to the agreement, but failure
of a birth parent to participate in the agreement does not prevent
other eligible family members from entering such an agreement. Other
eligible birth family members are limited by statute to only the
following: a grandparent, stepparent, sibling, step sibling, aunt, or
uncle of the prospective adoptive child.
Requirements for Court Approval
As noted above, court approval of a postadoption contact agreement must
be obtained before the adoption is finalized. If an adoption is
finalized without court approval of the postadoption contact agreement,
the court loses authority to approve or enforce such an agreement.
Finalization of the adoption confers all legal rights of a parent on
the adoptive parents. Once all parental rights have been fully vested
in the adoptive parents, the court no longer has any power to approve
or enforce a postadoption contact agreement. Even if other birth family
members reach an agreement with the adoptive parents, such an agreement
will be informal and cannot be legally enforced by the court.
In order to obtain court approval of a postadoption contact agreement,
the following conditions must be met:
- the court must find that the agreement is in the best
interest of the child;
- all parties who have either rights or obligations under the
agreement must sign the agreement;
- if the child being adopted is 12 years of age or older, the
child must also approve the agreement;
- the agreement must describe visits that may be allowed
under the agreement;
- any supervision that is to be required during visits must
be described;
- information or updates about the adopted child that is to
be provided by the adoptive parents must be described;
- grounds or terms under which the adoptive parents may deny
visits or cease providing information must be set out in the language
of the agreement.
In addition to the above terms and conditions, the agreement must
contain a notice to the parties that in the event of any subsequent
legal action to enforce, modify, or terminate the postadoption contact
agreement, the court is required to presume that the judgment of the
adoptive parents' is correct as to the best interests of the child.
This presumption is rebuttable, but the burden of presenting evidence
to rebut that presumption rests with the party challenging the adoptive
parents' judgment.
What a Postadoption Agreement Cannot Do
In order to be approved by a court, a postadoption contact agreement
cannot:
- restrict the adoptive parents' ability to choose to move
out of state; or
- provide for modification of the agreement without the
consent of the adoptive parents.
Best Interest of the Child

In
many areas of family law that involve children, the guiding principle
that the court will follow requires a determination of what is in the
"best interest" of the child. This principle also governs matters
involving adoptions and postadoption contact agreements. While the
interests of the birth parents and other members of the birth family
may be considered by the court, those interests cannot be allowed to
trump the court's consideration of what will ultimately be best for the
child.
Contact a Utah Attorney for Adoption Help
The
adoption
process can be an emotional roller coaster for adoptive parents, birth
parents and family, and for the child being adopted. The legal
processes involved in an adoption are complex and can be confusing.
Choosing the right attorney can be one of the most important choices
you make. If you are considering adoption,
contact
today to see how we can help.