Open Adoption Agreements

An open adoption is one in which the adoptive parents, the adoptee and the birth parents will have communication and/or contact after the adoption is completed.  Historically, many adoptions were “closed adoptions” in that the adoptive parents and the child-adoptee had no contact or communication with the birth parent(s) after the adoption was finalized.  In such “closed adoptions”, the parties knew little about each other and this continued over their lifetimes.  In recent decades, there has been a trend towards “open adoptions” where the child has information about or contact with the birth parents.

Under the Washington Open Adoption Agreement statute (RCW 26.33.295), the option of court ordered rights of contact and information exchange in an adoption were created.  Under the Washington Open Adoption Agreement Statute, the birth parent(s) can contract with the adoptive parent(s) for a right to be kept informed and/or to have contact with the child they are placing for adoption.

There is a wide variety in type and frequency of contact between the parties in an open adoption agreement.  There can be simply the exchange of current mailing addresses and of photographs. There can be telephone calls and correspondence.  There can be actual visits between the adopted child and birth parents after the adoption is finalized and parental rights have been terminated.

An “open adoption agreement” sometimes known as “an agreement for communication and contact” can make an adoption more attractive to birth parents and thereby facilitate adoptions.  Where such agreement is in place, there is not the “finality” with an open adoption when compared with a closed adoption where the biological parent may never see or hear about the adopted child again.

The Open Adoption Statute requires that an adoption agreement be in writing and signed by the required parties. The terms of the agreement for communication and contact are negotiated before the natural parent gives their consent to adoption.  A writing setting out the terms in compliance with the statue is prepared, signed by the required parties and is then approved by the court as part of the adoption process.  The agreement can be developed by DSHS and signed by relinquishing parent(s) in the dependency case but is ultimately presented to the adoption judge.

Necessary parties to the agreement are defined by the statute (RCW 26.33.295 (2)).  The parties must sign before the court will approve the agreement. Parties to such an agreement include the prospective adoptive parents, any birth parent whose parental rights have not been terminated, and, if the child or siblings of the child are in the custody of the department or a licensed child-placing agency, a representative of the department or child-placing agency. If the child is represented by an attorney or guardian ad litem in a proceeding or in any other child-custody proceeding, the terms of the proposed order also must be approved in writing by the child’s representative.

Now, siblings can be included in agreements for communication and contact.  Previously, siblings adopted by different families would not necessarily see each other but amendments to the act have expanded the permissible parties to the open adoption agreement to siblings of child adoptees.

The court will not enter a proposed order for agreement and contact unless there is a specific finding that the communication or contact with the child adoptee would be in the child adoptee’s best interests. (RCW 26.33.295)

The remedies are limited if an adoptive parent fails to comply with an agreement for communication and contact.  For the parent consenting to an adoption, rights for communication and contact are enforced by civil remedies such as specific enforcement, contempt and an award of attorney fees. RCW 26.33.295(3) provides that failure to comply with the terms of an agreed order regarding communication or contact that has been entered by the court shall not be grounds for setting aside an adoption decree or revocation of a written consent to an adoption after that consent has been approved by the court as provided in this chapter.

The court will not modify an agreed order under this section unless it finds that the modification is necessary to serve the best interests of the child adoptee, and that: (a) The modification is agreed to by the adoptive parent and the birth parent or parents; or (b) exceptional circumstances have arisen since the agreed order was entered that justify modification of the order. (RCW 26.33.295)(4).