Adoption f.a.q.'s
What kind of paperwork is required to start an adoption case??
When do we go to court?
What happens from the time we file the Petition until we go to court for the final hearing?
What should I wear to court?
What do I say in court?
When do we get the final decree of adoption?
When do we get a birth certificate?
How do we get a new Social Security card?
What about the birth parents?
Can my child try to find his/her birth parents?
Is there a tax credit for adoption expenses?
How do I get a birth certificate?
Birth parent rights
The Indian Welfare Child Act
Adoption tax credits
How do I get a Social Security number?
The Interstate Compact on the Placement of Children
Re-Adoption and Recognition of Foreign Adoptions
What kind of paperwork is required to start an adoption case?
In general, the following documents are filed to begin an adoption case:
Petition for Adoption - To formally ask the judge to allow you to adopt the child.
Consent to Adoption - The consent of parent or the State, in lieu of the parent, is usually required.
Home Study - To show the judge that you are suitable parents.
Financial Statement - To prove that no money was paid, especially to birth parents, other than for bona fide expenses.
Genetic & Medical History - To show the Court that you are aware of any medical or psychological challenges.
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When do we go to court?
Under Kansas law, the final hearing on your Petition must be held within 30-60 days after your Petition is filed. It’s usually held about 45 days after the date of filing.
In Missouri, if the child is coming to your home for the first time, you will attend two hearings. At the first hearing, you will be awarded “temporary” custody of the child. Missouri law requires that you have custody of the child for six months before an adoption may be finalized. After you have had custody for six months, you will return to court for your final hearing. At that time, the adoption is complete.
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What happens from the time we file the Petition until we go to court for the final hearing?
A social worker will visit your home to interview you about the placement. A report will be filed with the court.
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What should I wear to court?
A suit, dress or nice casual clothing. Bring a camera for a picture on this very special day!
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What do I say in court?
You will be asked approximately 15-20 questions that you may answer with either yes or no. Adoption proceedings are very informal, so you will probably testify from a table, rather than the witness stand.
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When do we get the final decree of adoption?
You should receive it on the day of the final hearing.
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When do we get a birth certificate?
A report of adoption will be sent to Topeka or Jefferson City and a birth certificate will be sent to your attorney’s office within about 45-60 days. Once you review and sign the birth certificate, we will send it to Topeka or Jefferson City for filing. A copy will be provided to you.
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How do we get a new Social Security card?
Once you have the Decree and birth certificate, you should take them both to the Social Security office nearest you. A complete listing is available in the blue pages of the telephone directory.
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What about the birth parents?
If the child that you are adopting has been in state custody, parental rights have probably been terminated. Once the birth parents’ rights have been terminated, they cannot interfere with your adoption. Adoption proceedings are closed and confidential, so they cannot obtain any identifying information about you.
If the birth parents’ rights have not yet been terminated, they will be asked to sign a consent to adoption. In Missouri, a birth parent will execute a consent to adoption no sooner than forty-eight (48) hours after the child is born. After a birth parent has signed the consent, it must be reviewed and accepted by a judge. Because the consent may be rescinded until it is accepted, the law requires the judge to approve the consent within three (3) business days after it is presented to the court. A brief hearing is required in some counties. Once approved, the consent may not be rescinded unless the birth parent can show that it was signed as a result of fraud, duress, incapacity or some other improper influence. This is very hard to show.
In Kansas, the mother cannot sign a consent to adoption[1] until twelve (12) hours after the birth of the child. The consent to adoption is final when executed, unless the birth parent can show that it was signed as a result of fraud, duress, incapacity, etc. Again, this is difficult to prove. In Kansas, the right of the birth parent to rescind their consent is cut off when the final decree of adoption is entered.
In both states, it is a good practice to obtain independent representation for the birth parents. The adoptive parents pay these fees. For obvious reasons, it is a good idea for the birth parents to have their own attorney(s) explain the meaning and implications of the consent to them.
Sometimes the birth father is unknown or cannot be found. Generally, if the birth mother has disclosed all she knows about his identity and whereabouts and he still cannot be located, he will be given notice of the adoption by notice published in the newspaper. If he fails to respond, the court will terminate his rights.
[1] Sometimes the birth parent will sign a “relinquishment”, which transfers custody and the authority to place the child for an adoption to an adoption agency. This is very common in Kansas
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Can my child try to find his/her birth parents?
A child 18 years or older may enlist the assistance of the state to help them find their natural parents. The same is true in Missouri, except that the consent of the adoptive parents is required.
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Is there a tax credit for adoption expenses?
Yes, depending upon your household income. Download the IRS brochure on the adoption tax credit and share it with your accountant.
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How do I get a birth certificate?
In the Kansas City area, the law regarding adoptions and birth certificates is similar on both sides of the state line, but the procedure varies.
In Missouri, a Certificate of Decree of Adoption form is filed along with the other paperwork at the start of your case. When the adoption is complete, the judge signs the form and the clerk forwards it to Jefferson City for processing, which takes a few months.
In Kansas, a Report of Adoption form is submitted to the judge along with the Decree of Adoption at the hearing to finalize your adoption. It is forwarded to Topeka for processing. In approximately 30-45 days, you will receive a proof to review, sign and return. The final birth certificate will be mailed to you shortly thereafter.
The new birth certificate will replace any birth certificate previously issued for the child.
A caveat: The new birth certificate must be issued by the state in which the child was born. Thus, if you adopted a child born in Ohio in Kansas, Ohio will issue the new birth certificate. The state of Kansas will forward the Report of Adoption to Ohio for processing. This extra step will delay your receipt of the new birth certificate.
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Birth Parent Rights
In the Kansas City area, adoption law concerning birth parents differs between Kansas and Missouri. One key difference is the amount of time that must pass before a birth parent can sign paperwork consenting to an adoption. In Kansas, a birth must wait at least 12 hours before signing, while in Missouri the waiting period in 48 hours.
I’m regularly asked whether a biological parent has an automatic right to withdraw his or her consent if done so within a certain amount of time. Although this may be true in other states, Kansas does not provide such a right and the opportunity in Missouri in very limited. In Missouri, a written consent to adoption is final and irrevocable when accepted and approved by a judge. Of course, sometimes a few days will pass from the time a birth parent signs the consent and when it is presented to a judge. During this time period, the birth parent can unconditionally withdraw his or her consent. However, once approved by a judge, it is irrevocable. After that, a birth parent has one year to challenge it, but only on the grounds that it was signed due to fraud, mental impairment, inducement or similar reasons which prove that the consent was not given voluntarily. This is generally very difficult to do.
A judge’s approval of the consent of a biological parent to adoption is not required in Kansas. The consent is effective immediately and may be revoked only if the biological parent can show it was not given voluntarily. The grounds for requesting revocation of a written consent are similar to those in Missouri. Such an action must be brought before the entry of the final decree of adoption, which is generally within 30-60 days after the date the case is filed.
A Missouri birth parent might have to go to court to have his or her consent approved. Whether a court appearance is required depends upon the county where the adoption case is filed.
A consent form is used only in a private adoption. In an agency adoption (where a licensed adoption agency is authorized to accept the custody and control of a child from a biological parent, which is allowed only in Kansas), a form called a relinquishment is used. The relinquishment is a two part transaction. After the biological signs the relinquishment form, a representative of the agency must also sign indicating its acceptance of the custody of the child. There is case law that indicates that a birth parent could revoke the relinquishment prior to the agency execution of the written acceptance. Most agencies sign the acceptance contemporaneously with the execution of the relinquishment or shortly thereafter.
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The Indian Welfare Child Act
In Kansas City area adoptions, birth parents sometimes report some Native American ancestry. A federal law, The Indian Child Welfare Act (“ICWA”), must be considered in every adoption of an American born child. ICWA applies when the child to be adopted is an “Indian child”. An Indian child is one who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the child of a member. Each tribe has its own criteria to determine whether a child is a member or eligible to be a member.
If either biological parent reports Native American ancestry, your attorney or adoption agency will send a letter to the tribe asking whether the child to be adopted is an Indian child. Most of the time, the answer will be no. If the answer if yes, the ICWA rules apply. They are too complicated to address here, but include special protections for a birth parent who wants to consent to the adoption of an Indian child. The consent cannot be given until ten days after the child is born, must be given before a judge and may be revoked before the adoption is final. ICWA also provides for notice to the applicable Indian tribe in involuntary termination cases, certain placement preferences and the right of the tribe to intervene in the adoption.
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Adoption tax credits
There is a federal tax credit for certain adoption related expenses. The credit may even apply to failed domestic adoptions.
The federal tax credit is subject to some limitations. There is a limit to the amount of adoption tax credit available. Additionally, the amount of the credit is reduced if household income exceeds a certain amount and is eliminated altogether when income exceeds the maximum amount. The IRS publishes circulars that set the parameters for the credit each tax year. The credit may be “carried forward” for up to five years.
The federal tax credit is available both for domestic adoptions and for the adoption of a non-citizen child when the adoption is completed.
Use IRS Form 8839 to claim the federal credit. If you won’t have a social security number in time to claim the child on your tax return, you may be able to obtain an Adoption Tax Identification Number by filing the appropriate form with the IRS (W-7 or W-7A).
In the Kansas City area, the law for state adoption tax credits varies between Missouri and Kansas. In Kansas, the credit is available for any adoption that qualifies for the federal credit. An additional credit is available is the adoption of a special needs child or a child in the custody of SRS. Use Form K-47 to claim the state adoption tax credit.
In Missouri, the state adoption tax credit is limited to adoptions of special needs children. The credit is claimed on Form ATC. State residency is required in both Missouri and Kansas to claim the state tax credit.
Always discuss the credit(s) available to you with your accountant.
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How do I get a Social Security number?
At or shortly after your final adoption hearing, you should receive a certified copy of your Decree of Adoption. The Decree will change your child’s name to the name you have chosen. In a few weeks (or months, depending on your state of residence), you will receive a birth certificate. Take the certified copy of your Decree of Adoption along with your child’s new birth certificate to the social security office nearest you.
[If you want or need to file your income taxes before you have your child’s permanent social security number, you may obtain a provisional number by completing Internal Revenue Service Form W-7-A.]
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The Interstate Compact on the Placement of Children
Because Kansas City straddles the state line between Kansas and Missouri, some adoptions involve a law called the Interstate Compact on the Placement of Children. If the child to be adopted will move from the child’s state of birth to another state as part of the adoption, the Interstate Compact on the Placement of Children may be implicated. For example, if adoptive parents live in Missouri, but the adoption will take place in Kansas, you must comply with the “ICPC”.
To initiate the process, the ICPC “100A” form is sent from the child’s state of birth (the “sending state”) to the “receiving state” (where the adoption will be finalized). A variety of court documents and other forms must accompany the 100A Each state has its own list of the documents required and it is often important to include the items on both lists.
You should plan on spending up to several days (or more) in the sending state while you wait for ICPC approval.
Compliance with the ICPC is critical. Both Missouri and Kansas have court cases stating that failure to comply provides a basis for a consenting birth parent to withdraw his or her consent to the adoption.
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Re-Adoption and Recognition of Foreign Adoptions
1. Missouri
Whether you need to “re-adopt” when you return with your child to Missouri depends upon the child’s immigration status. If both parents had personal contact with the child before the foreign adoption was finalized, your child will enter the U.S. on an IR3 Visa and no further legal proceedings are necessary. You will file a simple form available from the Missouri Department of Health and Senior Services to obtain a birth certificate issued by the state of Missouri.
If your foreign adoption was finalized without both adoptive parents having first seen the child, your child will enter the U.S. on an IR4 Visa. Although you can still obtain a Missouri birth certificate using the same form mentioned above, you will have to file a petition in Missouri for the recognition of the foreign adoption in order to get citizenship. Also, the IRS has said that a family cannot take the federal tax credit for a child until such a child is “re-adopted” in his or her home state, so it’s important to get the Missouri procedure completed as soon as possible.
The filing fee is about $250. Attorney’s fees will vary depending upon whether a court appearance is required. The need for a court appearance varies depending upon the Missouri county where the petition is filed.
2. Kansas
In Kansas, certified copies of the foreign adoption documents are filed with the clerk of the court in your county and Kansas automatically recognizes the foreign adoption. However, no court order or decree is issued. You may change your child’s name by filling out a special form for this purpose. In Johnson County, Kansas, the court trustee can provide you with this form. You may then request an adoption certificate from the vital records office in Topeka. You can do all of this without hiring an attorney.
A warning: If the child entered the country on an IR4 visa, this procedure may or may not work. The USCIS (formerly the INS) can waive the re-adoption requirement when a state has a law (like that in Kansas) automatically recognizing foreign adoptions. However, it appears that the USCIS will sometimes demand an order or decree of re-adoption or recognition of the foreign adoption before issuing a citizenship certificate. The best practice for citizenship purposes is to file a re-adoption case and request a decree/order of re-adoption. The re-adoption might also protect inheritance rights. Any name change is done as part of the re-adoption case. The total cost is about $500, including the filing fee.
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