Adoption Law

Who can adopt?
Who may be adopted?
What is the Hague Convention on Intercountry Adoption?
How do I qualify to adopt?
What is an Agency Adoption?
What is a Private or Direct Placement Adoption?
What is an Open Adoption?
When can consents to adoption be signed?
Does Arizona law allow payment of a birth parents living expenses?
How are Birth Fathers dealt with under Arizona law?
What is the Putative Father Registry?
What is the Interstate Compact on the Placement of Children?
What is the Indian Child Welfare Act?
What is the federal adoption tax credit?

Birth Parents

Can I choose the adoptive family for my child?
How will I know that the adoptive family is a good placement for my child?
Will it cost me anything to work with your firm?
Am I able to receive assistance with my living expenses while I am pregnant?
Can I obtain counseling to help me with my decision?
What rights does the father have?
Can I see my baby after it is born?
Will the baby have to go into foster care?
Do I have to appear in court?
Can I periodically receive pictures and letters from the adoptive family after the adoption?

Adoptive Parents

What do we need to do in order to adopt in Arizona?
What is certification, what is involved?
What if we identify a child available for adoption before we are certified?
Does your office represent adoptive parents from states other than Arizona?
Does your office search for birth parents?
Can adoptive parents who are not residents of Arizona adopt in Arizona?
What kinds of adoptions does your office handle?
How does Arizona law deal with a birth father’s rights?

Assisted Reproduction

What is assisted reproductive technology/surrogacy?
Why do people choose assisted reproductive technology/surrogacy?
What’s the difference between Traditional Surrogacy and Gestational Surrogacy?
What is a Pre-birth or Parentage Order?
What is an Embryo Donation?

LGBTQ Adoption

Can a same-sex married couple jointly adopt in Arizona?
What if we were married in a different state before Arizona recognized same-sex marriage?
Will both parents’ names go on the child’s birth certificate?
Will we be treated differently in the adoption process?
Will birth parents choose an LGBTQ family?
What is a “stepparent adoption” and can we do that in Arizona?
What is a “second parent adoption” and can we do that in Arizona?

Adult Adoption

What is an adult adoption?
Who can be adopted in an adult adoption?
Why would I want to adopt an adult?

Adoption Law

Who can adopt?

Any adult resident of Arizona, whether married, unmarried or legally separated is eligible to qualify to adopt children. A husband and wife may jointly adopt. Arizona law restricts unmarried couples from jointly adopting a child.

Whether or not a married same-sex couple may jointly adopt a child is currently unsettled. However, it is clear that same-sex couples can complete step-parent adoptions. State and Federal laws affecting same-sex couples are changing quickly and dramatically. We encourage you to contact our office for the latest status of this developing area of the law.

Who may be adopted?

A child under the age of 18, who is not an illegal alien and is present in the state at the time the petition to adopt is filed. The child must be legally free for adoption. “Legally free” means that the parents of the child have signed consents to the adoption, or pursuant to Arizona law, their consent is unnecessary, or their parental rights have been terminated by court order, or they are deceased.

What is the Hague Convention on Intercountry Adoption?

On April 1, 2008 the United States ratified the Hague Convention on Intercountry Adoption. Effective on that date all adoptions of children not citizens of the United States are governed by the Hague Convention. A child is typically considered “habitually resident” in his or her country of citizenship. If the Hague Convention is in force between the United States and the child’s country of citizenship, the requirements of the Hague must be followed if the child is to be legally adopted and eligible for US citizenship. This can be an expensive and time consuming process. Anyone considering the adoption of a child born in another country should consult with an attorney knowledgeable in both adoption and immigration law.

How do I qualify to adopt?

Before any prospective adoptive parent who is not related to a child (i.e. step parent, uncle, aunt, adult sibling, grandparent or great-grandparent) may petition to adopt a child the person shall be certified by the court as acceptable to adopt children.

A certification study, often referred to as a “home study” is conducted by a licensed adoption agency, an officer of the court or the Arizona Department of Economic Security.

The certification study is required to address:

  • A complete social history
  • The financial condition of the applicant
  • The moral fitness of the applicant
  • The religious background of the applicant
  • The physical and mental health condition of the applicants
  • Any court action for or adjudication of child abuse, abandonment of children, dependency or termination of parent-child relationship in which the applicant had control, care or custody of the child who was the subject of the action
  • All other facts bearing on the issue of the fitness of the prospective adoptive parents that the court, agency or division may deem relevant

The certification study, along with the recommendation of the agency preparing the study, is filed with the court in the county in which the adoptive parents reside. If the court certifies the prospective adoptive parents as acceptable to adopt, that certification is good for 18 months. If no adoption petition has been filed within that time, certification can be extended for one year periods if the court determines that there have been no material changes in circumstances that would adversely affect the acceptability of the prospective parents to adopt.

What is an Agency Adoption?

An agency adoption is one in which the birth parents of the child relinquish their parental rights to a licensed adoption agency. The agency becomes the legal custodian of the child, has the right to place the child for adoption and consent to the adoption. Many agencies allow birth parents to chose an adoptive family from the prospective adoptive clients of the agency.

What is a Private or Direct Placement Adoption?

A private or direct placement adoption is one in which the birth parents give their consent to adopt directly to the family that they have chosen as adoptive parents. In these adoptions, the child is usually discharged from the hospital directly into the custody of the adoptive parents.

What is an Open Adoption?

Most birth parents considering an adoption plan request an open adoption. There is no set definition of an open adoption, and openness can vary from meeting the adopting parents prior to the birth of the child to wanting ongoing communication and visitation after the adoption. Arizona law allows the birth parents and adoptive parents to enter into a written agreement regarding contact and communication after the adoption.

Does Arizona law allow payment of a birth parents living expenses?

Yes, Arizona allows adopting parents to assist a birth parent with her living expenses. A court order is required to pay living expenses exceeding $1,000.00.

Does a Birth Father have to give his consent to an adoption?

If the birth mother is married, her husband’s consent to the adoption is necessary, even if he is not the biological father. If DNA evidence of paternity rules out the husband as the father of the child, his consent may not be necessary. For fathers who are not married to the mother, a notice must be served on them advising them of the mother’s adoption plan. The father has 30 days from the date the notice is served upon him to file a paternity action in the Superior Court and to have the mother served with a copy of the paternity paperwork. If he does not file the paternity action and serve the mother within 30 days, his consent to the adoption is not necessary.

What is the Putative Father Registry?

The Arizona putative father registry is for fathers, who may have conceived a child, to file a claim of paternity. By filing with the registry, the father is entitled to notice of a mother’s adoption plan. A father can register at any time during the pregnancy and up to 30 days after the birth of the child. A father who fails to register within 30 days after the child’s birth waives his right to notification of any adoption proceeding involving the child, and his consent to the adoption is not required. Lack of knowledge of the pregnancy is no excuse for failing to register. The fact that the father had sexual intercourse with the mother is deemed to be notice to him of the pregnancy.

What is the Interstate Compact on the Placement of Children?

The compact is an agreement between the 50 states to ensure that a child moving from one state to another to be adopted is being placed into a suitable home with adoptive parents who are qualified to adopt. Administrators of the compact in both the sending state, where the child was born or is currently residing, and the receiving state, where the adoptive parents reside, review the adoption paperwork, including the homestudy, before granting approval for the child to leave the sending state and travel to the receiving state. In Arizona, adoptive parents cannot get approval to bring a child home from another state unless they are currently certified by the Superior Court as acceptable adoptive parents or are licensed foster parents. The compact does not apply to a parent, step-parent, grandparent, adult sibling, aunt, uncle or guardian.

What is the Indian Child Welfare Act?

The Indian Child Welfare Act, usually referred to as ICWA, is federal law that protects an Indian Tribe’s right to be involved with children who are members of the tribe or eligible for membership. A birth mother who is a member of a tribe, but who does not live on the reservation may make a voluntary adoption plan for her child. Consents to the adoption of an Indian child cannot be given until 10 days after the birth of the child. The consent to adopt can be withdrawn by the Indian parent at anytime and for any reason, up until a final decree of termination or adoption is entered.

What is the federal adoption tax credit?

The federal government has provided for a tax credit to assist adoptive parents with the expenses of an adoption. The credit phases out based on your modified adjusted gross income. The tax rules that govern how the credit is claimed and the amount of the credit are determined by the year your adoption was finalized. You will need to check with your own tax preparer to be certain that you qualify for and receive all of the benefits of this credit. The list below shows the maximum adoption credit that can be claimed, per child, by year:

  • 2011 – $13,360
  • 2012 – $12,650
  • 2013 – $12,970
  • 2014 – $13,190
  • 2015 – $13,400
  • 2016 – $13,460
  • 2017 – $13,570

If the child being adopted qualifies for the adoption subsidy program, the child is deemed “special needs” by the IRS and the full amount of the tax credit is available regardless of whether or not any expenses were incurred in the adoption.  Special needs children are usually those who come through the Department of Child Safety.

Birth Parents

Can I choose the adoptive family for my child?

In a direct placement adoption and most agency adoptions, the birth parent selects the adoptive family for her child.

How will I know that the adoptive family is a good placement for my child?

In Arizona people wishing to adopt must have a home study which looks at their personal background and their home to determine whether they are suitable to have a child placed in their custody. A criminal background check and child abuse clearance are a part of this study. The home study is reviewed by the court and the family is then certified as acceptable to adopt.

In other states, the family must have a home study completed by a licensed agency that recommends adoption by the family. This study also includes a criminal background check and child abuse clearance.

Will it cost me anything to work with your firm?

No. All legal fees and costs are paid by the adoptive parents.

Am I able to receive assistance with my living expenses while I am pregnant?

Yes, if you are in need of financial help, adoptive parents can assist with living expenses to maintain your standard of living and ensure the health and safety of you and your child.

Can I obtain counseling to help me with my decision?

Absolutely! We strongly encourage your participation in counseling. Our office works with a very experienced social worker who has counseled hundreds of birth parents.

What rights does the father have?

If you were married at the time of conception or at any time during the pregnancy, your husband must consent to the adoption. If you were not married, the father can be served with a notice that you have made an adoption plan. If he doesn’t file a paternity action within thirty days of being served with that notice, his consent to the adoption is not necessary.

Can I see my baby after it is born?

Yes. The decision about whether or not to see the baby in the hospital is entirely yours.

Will the baby have to go into foster care?

No. The baby can go directly from the hospital to the adoptive parents.

Do I have to appear in court?

No. Unless the family you choose is from a state that requires your consent to the adoption to be done before a judge.

Can I periodically receive pictures and letters from the adoptive family after the adoption?

Yes. Arizona now permits birth parents and adoptive parents to enter into a written agreement specifying what contact or communication shall be maintained between the parties after the adoption.

Adoptive Parents

What do we need to do in order to adopt in Arizona?

The first choice is to determine whether you want to work with an adoption agency, or do a direct placement adoption with the assistance of a knowledgeable attorney. Whichever choice you make, you must be certified by the court as acceptable to adopt before a petition to adopt can be filed. You must also be certified before an attorney can present you to a birth parent seeking an adoptive placement for their child. You must also be certified in order to bring a child born outside of Arizona into this state for the purpose of adoption.

What is certification, what is involved?

Certification involves a home study and background check conducted by a licensed adoption agency, the Arizona Department of Economic Security or if you live in Pima County and are income eligible, by the Adoptions Office at the court. You will have to be fingerprinted so that a criminal records check can be completed through the FBI. The entity conducting the investigation submits a report and recommendations to the court in the county where you reside, and a judge will determine if you should be certified as acceptable to adopt. This process takes approximately 120 days to complete.

What if we identify a child available for adoption before we are certified?

Arizona law permits the court to grant prospective adoptive parents temporary custody of a child pending completion of the certification process. A court hearing is required, and this must be requested within 5 days of your obtaining custody of the child.

Does your office represent adoptive parents from states other than Arizona?

Yes. Although it is difficult to imagine why someone would want to live someplace other than this beautiful state, we can represent you no matter where you live. If you have already identified a birth mother in Arizona we can meet with her, offer counseling, get the child released from the hospital after birth, obtain consents to the adoption and get approval from the Interstate Compact on the Placement of Children for you and the child to return home.

Can adoptive parents who are not residents of Arizona adopt in Arizona?

No. Adoptive parents may match with a birth mother who resides in Arizona.  Adoptive parents who reside in another state must file a Petition to Adopt in accordance with their own state laws.

What kinds of adoptions does your office handle?

We handle direct placement adoptions, where the birth parent chooses the adoptive parents for her child; step-parent adoptions; relative adoptions and adult adoptions.

How does Arizona law deal with a birth father’s rights?

If the father is not married to the mother, Arizona law requires that he be personally served with a Potential Father Notice. This notice advises him that the mother has made an adoption plan, and requires him to file a paternity action within 30 days if he has an objection. If he does not file the lawsuit within the time limit, his consent to the adoption is not necessary.

Assisted Reproduction

What is assisted reproductive technology/surrogacy?

ART/Surrogacy is a pathway for a couple or a single woman experiencing infertility issues, a same-sex couple, or a single man to have a child that may or may not be biologically related to them.

Why do people choose assisted reproductive technology/surrogacy?

ART/Surrogacy offers individuals and couples who cannot have a child otherwise, the option of having a child who is genetically related to them. It gives people control over the prenatal care of their child and offers them the chance to be involved with the pregnancy, something you cannot typically do with adoption. There is the certainty of having a child and the ability to determine legal parentage before or shortly after the child’s birth.

What’s the difference between Traditional Surrogacy and Gestational Surrogacy?

Traditional surrogacy occurs when a woman agrees to be artificially inseminated with either the intended parent’s sperm or donated sperm and to carry the child for the intended parent(s) to raise. The surrogate is the biological and genetic mother of the child. Gestational surrogacy is when a woman agrees to carry a pregnancy for another person or couple. The woman is often referred to as a “carrier”. The carrier is not genetically related to the child. This can involved any of the following combinations:

  • Intended Parents’ sperm and egg
  • Intended Parent’s sperm and donated eggs
  • Intended Parent’s eggs and donated sperm
  • Donated egg and donated sperm
  • Donated embryos

What is a Pre-birth or Parentage Order?

The goal is to have the intended parents’ names on the baby’s birth certificate shortly after the child’s birth. We do this by obtaining a court order determining the parentage of the child. While every effort is made to obtain a parentage order pre-birth, there are some issues that may arise which may prevent an order from being entered prior to the child’s birth. It is important to be aware of all possible outcomes and the options available to you.

What is an Embryo Donation?

Intended parents who have created embryos from their own eggs and sperm or with donated eggs or sperm who have completed their family or have decided not to proceed with any further attempts to have a family may wish to donate their embryos to another family rather than have them destroyed or given to medical researchers.

LGBTQ Adoption

Can a same-sex married couple jointly adopt in Arizona?

Yes. While the granting of an adoption is ultimately up to a judge, many same-sex couples have successfully jointly adopted a child in Pima County and Arizona.

What if we were married in a different state before Arizona recognized same-sex marriage?

Arizona recognizes same-sex marriages performed in other states, even if those marriages occurred before Arizona began recognizing same-sex marriage.

Will both parents’ names go on the child’s birth certificate?

Yes. The Arizona Department of Vital Records will place both parents’ names on the child’s birth certificate, just as in a heterosexual adoption. The names will be listed as “parent” and “parent.”

Will we be treated differently in the adoption process?

Same-sex couples will be treated no differently from other couples and individuals adopting. Like any adopting family, it is important for couples and individuals to find the right match with an adoption service provider. Adoptive families want to ensure that there is a trusting and supportive relationship built between the family and provider helping create their forever family.

Will birth parents choose an LGBTQ family?

Yes. Although there is a perceived stigma attached to LGBTQ families, birth parents frequently choose LGBTQ families for their children.

What is a “stepparent adoption” and can we do that in Arizona?

A stepparent adoption is the adoption of a child by the spouse of the child’s legal parent. Because their marriages are recognized by the State of Arizona, same-
sex couples can complete stepparent adoptions.

What is a “second parent adoption” and can we do that in Arizona?

Many states allow second parent adoptions, an adoption by two people are not married. Arizona law does not allow for second parent adoptions. For two people to jointly adopt a child, they must be married. Because Arizona recognizes same-sex marriages, same-sex couples can jointly adopt a child or one spouse may adopt the child of the other spouse.

Adult Adoption

What is an adult adoption?

Adult adoptions provides forever families with a pathway to create a legally recognized relationship by allowing an adult person to adopt a person over the age of 18 years old.

Who can be adopted in an adult adoption?

  1. Any person between the ages of 18 years and 21 years.
  2. Any person who is the step-child, niece, nephew, cousin or grandchild if the adopting person, regardless of age.
  3. Any person who is the foster child of the adopting person, placed with the adopting person as a minor, and who has maintained a familial relationship with the adopting person for a period of five or more years, regardless of age.

Why would I want to adopt an adult?

There are many reasons why somebody would want to adopt an adult, but the main reason is to legalize the loving parent-child relationship that has existed in a family. For example:

  1. An aunt raised her nephew all of his life.
  2. A step-parent who has been in his/her step-children’s lives for decades, but never got around to formally adopting the children.
  3. A same-sex person whose marriage is now recognized by the state can adopt their spouse’s child, even if that child is now an adult.
  4. A rekindled relationship between birth mother and her son, after she placed him for adoption as an infant.

Other reasons may include legally recognizing a person as a child for social security benefits, military benefits, retirement benefits, and for estate planning purposes.