Postadoption Contact Agreements Between Birth and Adoptive Families - Massachusetts

What may be included in postadoption contact agreements?

Citation: Ann. Laws Ch. 210, § 6C

Prior to the entry of an adoption decree, prospective adoptive parents and a birth parent may enter into an agreement for postadoption contact or communication between or among a minor to be adopted, the prospective adoptive parents, and the birth parents.

To be approved by the court, an agreement for postadoption contact or communication must contain the following statements:

• This agreement is entered into pursuant to the provisions of Chapter 210, § 6C.
• Any breach, modification, or invalidation of the agreement or any part of it shall not affect the validity of the adoption. The adoption shall be final.
• The parties acknowledge that either the birth or adoptive parents who have entered into the agreement have the right to seek enforcement.
• The parties have not relied on any representations other than those contained in the agreement.

The agreement shall be signed by the parties and acknowledged before a notary public as the free act and deed of the parties. If the child is older than age 12, the agreement shall contain the written consent of the child. If the child is in the custody of the Department of Children and Families, the agreement shall contain the written approval of the department and the attorney for the child. If the child is in the custody of a licensed child care agency, the agreement shall contain the written approval of the agency.

Who may be a party to a postadoption contact agreement?

Citation: Ann. Laws Ch. 210, § 6C

The agreement may be between the prospective adoptive parents and the birth parents.

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

Citation: Ann. Laws Ch. 210, § 6C

The court shall approve an agreement for postadoption contact or communication if the court finds that such agreement is for the best interests of the child, contains terms that are fair and reasonable, and has been entered knowingly and voluntarily by all parties to the agreement.

The requirement that a postadoption contact agreement must be entered knowingly and voluntarily may be satisfied by an affidavit executed by all parties, either jointly or separately, that is filed with the court. The affidavit shall state that the agreement is entered into knowingly and voluntarily and is not the product of coercion or duress.

Are agreements legally enforceable?

Citation: Ann. Laws Ch. 210, §§ 6C; 6D

To be enforceable, an agreement for postadoption contact or communication shall be in writing, approved by the court prior to the date for entry of the adoption decree, incorporated but not merged into the adoption decree, and shall survive as an independent contract.

An agreement under this section need not disclose the identity of the parties to be enforceable, but if an identity is not disclosed, the unidentified person shall designate an agent for the purpose of receiving court notices.

An agreement for postadoption contact or communication shall cease to be enforceable on the date the adopted child turns age 18.

A party to a court-approved agreement for postadoption contact or communication may seek to enforce the agreement by commencing a civil action for specific performance. A court order for specific performance of the terms of a postadoption contact agreement shall be the sole remedy for breach of an agreement.

In such proceedings, parties shall not be entitled to the appointment of counsel. However, the court may appoint a guardian ad litem to represent the interests of the child.

If the court finds that an action brought under this section was wholly insubstantial, frivolous, and not advanced in good faith, the court may award attorney's fees to all prevailing parties.

Nothing in the agreement shall preclude a party seeking to enforce an agreement for postadoption contact or communication from utilizing child welfare mediation or permanency mediation before, or in addition to, the commencement of a civil action for specific enforcement.

How may an agreement be terminated or modified?

Citation: Ann. Laws Ch. 210, § 6D

In an enforcement proceeding, the court may modify the terms of the agreement if the court finds that there has been a material and substantial change in circumstances and the modification is necessary in the best interests of the child. A court-imposed modification of a previously approved agreement may limit, restrict, condition, or decrease contact between the birth parents and the child, but in no event shall a court-imposed modification serve to expand, enlarge, or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents.