Postadoption Contact Agreements Between Birth and Adoptive Families - California

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What may be included in postadoption contact agreements?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The terms of any postadoption contact agreement shall be limited to, but need not include, all of the following:

  • Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings, and the child's Indian Tribe if the case is governed by the Indian Child Welfare Act
  • Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both, and in cases governed by the Indian Child Welfare Act, the child's Indian Tribe
  • Provisions for the sharing of information about the child in the future

The terms of any postadoption contact agreement shall be limited to the sharing of information about the child unless the child has an existing relationship with the birth relative.

A postadoption agreement shall contain the following warnings in bold type:

  • After the adoption petition has been granted by the court, the adoption cannot be set aside due to the failure of an adopting parent; a birth parent; a birth relative, including a sibling; an Indian Tribe; or the child to follow the terms of this agreement or a later change to this agreement.
  • A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.
  • A court will not act on a petition to change or enforce this agreement unless the petitioner has participated, or attempted to participate, in good faith mediation or other appropriate dispute resolution proceedings to resolve the dispute.

When a court orders that a dependent child be placed for adoption, nothing in the adoption laws of this State shall be construed to prevent the prospective adoptive parent or parents of the child from expressing a willingness to facilitate postadoptive sibling contact.

Who may be a party to a postadoption contact agreement?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

The following persons may be parties to a postadoption contact agreement:

  • The adopting parent or parents
  • The birth relatives, including the birth parent or parents or any siblings
  • The child
  • In cases governed by the Indian Child Welfare Act, the child's Indian Tribe

The child who is the subject of the adoption petition shall be considered a party to the postadoption contact agreement. A child who is age 12 or older must consent in writing to the terms and conditions of the postadoption contact agreement and any subsequent modifications, unless the court finds by a preponderance of the evidence that the postadoption agreement, as written, is in the best interests of the child.

What is the role of the court in postadoption contact agreements?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

At the time of an adoption decree, the court entering the decree may grant postadoption privileges if an agreement for those privileges has been executed, including agreements entered into pursuant to § 8620(f) (pertaining to agreements between an Indian child and the child's Tribe).

Upon the granting of the adoption petition and the issuance of the order of adoption of a child who is a dependent of the juvenile court, juvenile court dependency jurisdiction shall be terminated. Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption.

The court shall not set aside an adoption decree, rescind a relinquishment, or modify an order to terminate parental rights because of the failure of any party to comply with the original terms of, or subsequent modifications to, the agreement. Exceptions are as follows:

  • Prior to issuing the adoption order involving an Indian child and upon a petition of the birth parents; birth relatives, including a sibling; or an Indian Tribe, the court may order the parties to engage in family mediation services to reach an agreement if the prospective adoptive parent fails to negotiate in good faith to execute a postadoption contact agreement.
  • Prior to issuing the adoption order involving an Indian child, if the parties fail to negotiate in good faith to execute an agreement during the negotiations entered into pursuant to the above paragraph, the court may modify prior orders or issue new orders as necessary to ensure the best interests of the Indian child are met. This includes, but is not limited to, requiring parties to engage in further family mediation services to reach an agreement, initiating guardianship proceeding in lieu of adoption, or authorizing a change of adoptive placement for the child.

Are agreements legally enforceable?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption. The court may not order compliance with the agreement absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action, and that the enforcement is in the best interests of the child.

Documentary evidence or offers of proof may serve as the basis for the court's decision regarding enforcement. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the child's home to the detriment of the child.

The court may not award monetary damages as a result of the filing of the civil action for enforcement of the agreement.

How may an agreement be terminated or modified?

Citation: Fam. Code § 8616.5; Welf. & Inst. Code § 366.29

A postadoption contact agreement may be modified or terminated only if either of the following occurs:

  • All parties, including the child if the child is age 12 or older at the time of the requested termination or modification, have signed a modified postadoption contact agreement and the agreement is filed with the court that granted the petition of adoption.
  • The court finds all of the following:
    • The termination or modification is necessary to serve the best interests of the child.
    • There has been a substantial change of circumstances since the original agreement was executed and approved by the court.
    • The party seeking the termination or modification has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings prior to seeking court approval of the proposed termination or modification.

If, following entry of an order for sibling contact, the adoptive parent(s) determine that sibling contact poses a threat to the health, safety, or well-being of the adopted child, the adoptive parent(s) may terminate the sibling contact, provided that the adoptive parent(s) must submit written notification to the court within 10 days after terminating the contact. The notification must state to the court the reasons why the health, safety, or well-being of the adopted child would be threatened by continued sibling contact.