Q & A: Adoption and Divorce


via Adoptive Families

Q. My husband and I are contemplating a divorce. Will our daughter's adoption status figure into the legal proceedings?

A. When an adoptive family encounters divorce and custody proceedings, the legal status of the child becomes relevant. Many states provide for the recognition of a foreign adoption, and, therefore, the child would be treated no differently than if he or she were your biological child. However, in some rare circumstances, the foreign adoption decree may list only one of the adoptive parents, a fact which can become important in a custody dispute. An issue may arise if your state of residence requires that you readopt your child in your state court and you have yet to complete that process.

Fortunately, current federal law provides, in most cases, that children adopted by United States citizens automatically become American citizens upon their entry into the U.S. However, it's never certain how a child's birth country might react to a post-placement report revealing that the adoptive parents have separated. In a private, domestic-agency adoption, physical custody of the child will rest with the adoptive parents after birth, however, legal custody will remain with the agency. The agency will retain legal custody of the child until the adoption is finalized by the adoptive parents, a process that can easily take several months. A public, domestic agency will also have legal custody of children in its care until finalization.