A disruption of adoption occurs when an adoption has not been completed, and someone (usually a biological parent) contests the adoption and attempts to prevent parents from adopting the child.
A reversal of adoption occurs after a court has finalized an adoption, and a later court ruling declared that the adoption was invalid.
How a disruption of adoption can occur
In all adoption cases, the person seeking to adopt the child must notify both parents of the pending adoption, unless
- A parent is deceased,
- A prior court ruling has terminated a parent’s parental rights, or
- A parent consents to the adoption.
Any parent, who received notice that an adoption is pending, has the right to object to the adoption. If the parent objects, the court must hold a hearing and determine whether there are legal grounds to adopt the child without the parent’s consent. A contested hearing in an adoption case and the process of preparing for it can be time-consuming, expensive, and emotionally stressful.
How a reversal of adoption can occur
There are two ways a reversal of adoption can occur: by a direct attack, and by a collateral attack.
A direct attack, is a challenge made in the same court proceeding where the order was entered. One type of direct attack is an appeal, where the losing party takes the case to a higher court. In most states, if a court has entered an adoption decree, the biological parent has the right to appeal the case. Another type of direct attack is a motion, in which the losing party asks the court to hold a new trial. In many states, the law allows a losing party to obtain a new trial, if the losing party can show that there were certain deficiencies or irregularities in the original trial; state laws often list which specific deficiencies are grounds for a new trial.
A collateral attack is a challenge made in a different proceeding than the proceeding in which the original order was entered. In a collateral attack on an adoption, a biological parent might commence a new case, and ask a judge to invalidate the adoption in the original case. The laws allowing collateral attacks on adoptions vary from state to state.
Some states have a time limit for when a parent may file a direct attack or a collateral attack. For example, in my home state of Oklahoma, a parent may not file a direct attack or collateral attack on an adoption more than three months after the court enters the adoption decree. You can also visit here to learn more about how the adoption process work in Oklahoma.
Keep in mind, though, that the time limits for filing a direct or collateral attack on an adoption are state laws. The Supremacy Clause of Article Six of the U.S. Constitution says that the U.S. Constitution, and federal law, preempt all state laws. So, if a court finds that the time limit for adoption violates federal law or the U.S. Constitution, then, the court may still allow a parent to file a direct or collateral attack on an adoption after the time limit.
How to avoid a disruption or reversal of an adoption
The only way to avoid the disruption of an adoption, is to obtain the consent of both parents. If both parents won’t consent, you’ll have no choice but to go through a contested hearing.
Many reversals of adoption have occurred because the attorney for the adoptive parents failed to properly comply with the adoption laws. To avoid a reversal of your adoption, make sure that your adoption attorney is competent, and understands his obligations under the law.
A disruption or reversal of adoption can be very painful. While some disruptions and reversals are inevitable, you may be able to avoid many of them. Don’t let the possibility of a disruption or reversal deter you from bringing a new child into your home!
Author Bio:
Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. Kyle has years of experience assisting the residents of Bartlesville in a variety of legal matters including family law, civil law, and estate planning. Mr. Persaud holds a B.A. from Oklahoma Wesleyan University, and a J.D. from the University of Tulsa College of Law.
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