January 29, 2006

US Re-Adoption 101: PART 1

Welcome to our new discussion series on Re-Adoption. We'll be tackling such issues throughout the year and I hope that they are helpful!

PART 1: While most families (and I say this loosely) have very few issues associated with Readoptions, Domestications, Name Changes, Recognitions, etc.; there are a number of courts and judges that have refused to grant legal requests based on seemingly nonsensical requirements. Some of these requirements conflict with US Immigration Law, the legal adoption process in Guatemala and even State law. Because parents are exhausted from the emotional ride of their international adoption, they are less equiped to fight what seems like another personal battle. Afterall, how many of us would have thought there would be problems within our own states? Yet, the laws are so different state to state, it is in our best interest to know the readoption landscape EVEN BEFORE WE START OUR ADOPTION!! Regardless, many parents are becoming aware of these challenges at the courthouse steps and are being blindsided by a system that does not understand Guatemalan adoptions. OK...so we (Guatadopt.com) cannot provide legal assistance. We CAN, however, discuss the pros and cons of attempting to meet the courts' requirements vs fighting with knowledge. Since this is such a broad subject, we will dedicate a category of discussion dedicated to Domestication & Readoption Problems.

So what's going on?

* Courts/Judges are requiring that all original documentation be permanently relinquished to the court!
* Judges are refusing to grant name changes!
* Courts are requiring consent of the birth father!
* Courts/Judges are not recognizing the adoption decree without a signature of a judge (IR3 and IR4)!
* Judges are refusing to grant a readoption based on his/her own opinion about the Guatemalan adoption process!

Wow...where should we even start? Well, I titled this particular article "Re-Adoption 101" with a little sarcasm. Most adoptive parents think of Re-adoption as an elective course (as I did up until a couple of years ago!). In fact, it probably should be a pre-req for "Guatemala Adoption 105!". So, we have a small problem in starting this class. We have students who are just starting research into International Adoption sitting along side those who have completed their international process! In addition, there are going to be some very different approaches to handling the process from state to state and courtroom to courtroom. I realize that there are many more details to laws that govern our adoption. However, we are going to take this from a layman's perspective and then drill down to the legal nitty gritty as needed. But before you post a comment about the "easy way" or "I did this...", please understand that this discussion is going to have an underlying theme: "How can our actions make it better for other adoptive parents who come after us?" and "How do I protect my family's rights and the rights of my adopted child(ren)?" Furthermore, we can get stuck in the technicalities of the legal system. So, I would rather have legal "clarifications" come from attorneys and only if it seems relevant/useful to the article. So, after a lot of false starts, lets get some basics under our belt.

Guatemala vs. Federal Law vs. State Law.

US Government: As many of you know, there are two types of Visas that are issued to children adopted from Guatemala. The IR-3 Visa is issued to families who have physically visited their child(ren) prior to the Finalization of the Adoption in Guatemala (when the Protocolo is signed). The IR-4 Visa is issued when the family has NOT physically seen the child prior to the Protocolo. This recognition of the Visa Status doe NOT equal "finalization of adoption" but it does play a very important role. The issuance of the Visa (in either case) recognizes the *legality* of the adoption in Guatemala. In other words, the child has met the orphan classification and the Embassy has reviewed the case.* In the case of an IR-4, the US Government is requiring in some manner that the child's adoption be "finalized" in their state of residence.

Guatemala. As far as Guatemala is concerned, the adoption is final when the protocolo is signed. They do not send children to the states on a trial basis. So, in their eyes the parental rights of the birth family HAVE BEEN TERMINATED and have been transferred to the adoptive parents. PGN (equivalent to the Attorney General's Office) must approve the adoption prior to the signing of the Protocolo. Furthermore, a gentleman's agreement with the US Embassy ensures that an adoption will not be finalized unless the Embassy has "pre-approved" the case. Prior to any adoption being finalized in Guatemala, the Attorney General's Office and the US Embassy have been given the opportunity to protest/deny the adoption. It is their responsibility to research possible corruption, conflicts in stories, attorneys representing the adoptions, etc. This is quite important as it shows that the child's adoption paperwork "appears" to be in order and is recognized as being a legal adoption.

States: But at the state level, things get messy. Each state has the right to decide the laws surrounding the recognition of a foreign adoption. On first appearance of the laws surrounding recognition, it seems like it would be rather straight forward to do a readoption in most states AS IT SHOULD BE! But the devil is in the details. Since most states require some sort of formal court process to recognize the adoption, parents are at the mercy of the court system. When researching your own re-adoption, a good place to start is NAIC. From there, we will talk about the "intent of the laws" and rights of the parents.

Advantages of IR-3
One of the biggest advantages of visiting your child prior to the protocolo is the IR-3 Visa and the child coming home as a US citizen. On the state level, this may affect the process that your state requires to "recognize" the adoption. An IR-3 visa may be less important in states which automatically recognize the adoption and more important in states which require a judicial process (where you are at the mercy of the court/judge). Regardless, every parent should weigh the advantages of a visit before the adoption is finalized in Guatemala. Furthermore, this decision MAY effect what agency/attorney you choose. Some agencies/attorneys have strict visitation policies, scheduled visitation or may have a policy AGAINST pre-adoption visitation. If you plan to visit, you really need to make sure you understand the policy of your agency BEFORE signing the contract!

US Citizens living abroad should definately visit the child prior to the Protocolo. Otherwise, it may be rather difficult to obtain the child's US citizenship. In addition, the parents should plan to make a stop in the US when bringing their child home in order to complete the immigration process for their child.

Advantages of Readoption/Domestication
As mentioned above, many states will require some sort of formal domestication/readoption process in order for the state to acknowledge the adoption regardless of whether your child came home on an IR-3 or an IR-4. Some of the benefits are:

1 - In many states, readoption ensures automatic inheritance rights for your child.
2 - You will have a state issued birth certificate which is easier to replace and use.
3 - You have a local certified copy of an adoption decree or domestication which is also easier to replace and use.
4 - Your documents are in English and there is no need for a translated version.
5 - The possiblity that there are other state benefits or recognitions associated with the readoption/domestication.
6 - US Constitution's Full Faith and Credit Clause ensures that an adoption recognized in one state is also recognized in all other states. If you plan to move, you may want to review the readoption process in both states.

The most obvious benefit that I have seen is the state issued birth certificate. Already, we have lost a birth certificate to paperwork (I don't know if it was school, insurance or the US Passport process!). But it is reassuring to know that I can easily replace it! In addition, I am reassured that if we move to another state, that state will HAVE to recognize my adoption under the Full Faith and Credit Clause.

But now that we have discussed the basics, lets talk about how you can improve your chances of getting the re-adoption completed on the first try!

1 - Include a cover letter that outlines what you have included in your petition. Whether or not you are using an attorney, this might prove invaluable to the court.

2 - Know the state law. You can print a copy of the basic

3 - Know how your court handles readoptions. Some may "require" an attorney to represent you. While this may be costly, it may be the best way to avoid the hassle.

4 - Include a clear translation of the documents. Oftentimes, the judge will accept it based on a notarized letter from the translator stating that Spanish is their native language. However, some may still require a certified translation. Again, having a clear cover letter detailing what is included (and its meaning) may make a huge difference in the petition.

5 - Print a copy of the adoption process. It may even help to have someone make a written statement that this is the legal adoption process recognized by the Embassy in Guatemala. But if the judge is well versed in Guatemalan adoptions (where you find that many other parents have had no problems with readoptins in the county), then be conservative...its probably not necessary.

What can be done if you run into problems?

The first thing to understand is that you are not alone. You may have to backup and evaluate the situation, but its not the end of the world. Here are a few pointers:

1 - Do not show anger at the people you are dealing with. Even if you are destined for a legal battle, it does no good for you to lose your temper.

2 - Keep a journal of the things that you have done in order to resolve the issues. This history may come in handy if not resolved quickly.

3 - Evaluate whether other parents may be adversely affected by your actions. In several cases, there may be an "easy way out"....but does it hurt the rights of future adoptive parents? Does it undermine the Guatemalan system? Are you waiving your own legal rights?

4 - Form a plan of attack. Depending on the issue, there may be a logical chain of command. Don't deviate or you may burn your bridges.
5 - Keep the attitude that you are showing them why they are wrong instead of humiliating them or insulting them. (This is definately tough for me as my temper flares when I hear about some of the issues parents have faced). But if we want to convince someone of our point of view, it probably does not help to resort to name calling or insults.
6 - Be prepared to offer additional documents that may "educate" them about the process and/or the reasons for your request.

Oftentimes, a request/rejection may be a side effect of missing documentation. Review your petition and supporting documentation from the view of someone who knows nothing about the process. Fill in the holes.

I realize that this is just a tip of the iceburg. So, we'll be taking a look at some of these cases where rejections/requirements have caused a lot of problems for the adoptive parents.

Part 2: We'll be talking about a case in Rockdale County, GA: Permanently relinquishing your adoption documents? I don't think so!

Posted by Kelly at 12:17 PM