Postadoption Contact Agreements Between Birth and Adoptive Families - Nebraska

What may be included in postadoption contact agreements?

Citation: Rev. Stat. §§ 43-155; 43-156; 43-157; 43-158; 43-166

When planning the placement of a child for adoption, the Department of Health and Human Services may determine whether the best interests of such child might be served by placing the child in an adoption involving exchange of information. In an adoption involving exchange of information one or both of the child's biological parents contract with the department for information about the child obtained through his or her adoptive family. An exchange-of-information contract is a 2-year, renewable obligation voluntarily agreed to and signed by both the adoptive and biological parent(s)and the department.

When the department determines that an adoption involving exchange of information would serve a child's best interests, it may enter into agreements with the child's proposed adoptive parent(s) for the exchange of information. The nature of the information promised to be provided shall be specified in an exchange-of-information contract and may include, but shall not be limited to, letters by the adoptive parent(s) providing information regarding the child's development or photographs of the child at specified intervals.

In a private adoption, a communication and contact agreement may include provisions for future contact or communication between the relinquishing parent(s) and the adoptee or the adoptive parent(s), or both; sharing information about the adoptee; or other matters related to communication or contact agreed to by the parties.

The agreement shall state the following: No adoption shall be set aside due to the failure of the adoptive parent(s) or the relinquishing parent(s) to follow the terms of this agreement or a later order modifying or terminating this agreement. Disagreement between the parties or a subsequent civil action brought to enforce, modify, or terminate this agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.

Who may be a party to a postadoption contact agreement?

Citation: Rev. Stat. §§ 43-156; 43-162; 43-166

An exchange-of-information contract is a 2-year, renewable obligation voluntarily agreed to and signed by both the adoptive and biological parent or parents as well as the department.

If the prospective adopted child is in the custody of the department, the prospective adoptive parent or parents and the birth parent or parents of a prospective adopted child may enter into an agreement regarding communication or contact after the adoption between or among the prospective adopted child and his or her birth parent or parents.

In private adoptions or agency adoptions for adoptees not in the custody of the department, the adoptive parent(s) and the parent(s) relinquishing a child for adoption may enter into a written agreement to permit continuing communication and contact between the adoptive parent(s) and the relinquishing parent(s) after the placement of an adoptee.

In private adoptions, parents who relinquish a child for adoption shall be provided legal counsel of their choice who is independent from that of the adoptive parent(s) and at the expense of the adoptive parent(s) prior to the execution of a written relinquishment and consent to adoption or a communication and contact agreement, unless specifically waived in writing.

If the adoptee is age 14 or older at the time of placement, a communication and contact agreement shall not be valid unless consented to in writing by the adoptee.

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

Citation: Rev. Stat. §§ 43-163; 43-166

Before approving an agreement for postadoption contact, the court shall appoint a guardian ad litem to represent the best interests of the child concerning such agreement.

The court may enter an order approving the agreement upon motion of one of the child's birth parents or one of the prospective adoptive parents if the terms of the agreement are approved in writing by the prospective adoptive parents and the birth parents and if the court finds, after consideration of the recommendations of the guardian ad litem, the department, and other factors, that such communication with the birth parent or parents and the maintenance of birth family history would be in the best interests of the child.

In determining if the agreement is in the best interests of the child, the court shall consider the following factors as favoring communication with the birth parent or parents:

• Whether the child and birth parent or parents lived together for a substantial period of time
• Whether the child exhibits attachment or bonding to the birth parent or parents
• Whether the adoption is a foster parent adoption with the birth parent or parents having relinquished the prospective adopted child due to an inability to provide him or her with adequate parenting

A court may approve a communication and contact agreement entered into under § 43-166 by incorporating in the decree of adoption such agreement by reference and indicating the court's approval of such agreement.

Enforceability of a communication and contact agreement is not contingent on court approval or its incorporation into the decree of adoption.

Are agreements legally enforceable?

Citation: Rev. Stat. §§ 43-160; 43-162; 43-165; 43-166

The parties to an exchange-of-information contract shall have the authority to bring suit in a court of competent jurisdiction for the enforcement of any agreement entered into pursuant to § 43-158.

Any such agreement shall not be enforceable unless approved by the court pursuant to § 43-163.

An agreement that has been approved pursuant to § 43-163 may be enforced by a civil action, and the prevailing party may be awarded reasonable attorney's fees as part of the costs of the action.

A communication and contact agreement entered into under § 43-166 may be enforced by a civil action. The court shall not award monetary damages as a result of the filing of a civil action pursuant to this section.

Neither the existence of nor the failure of any party to comply with the terms of a communication and contact agreement entered into under this section shall be grounds for (a) setting aside an adoption decree, (b) revoking a written relinquishment of parental rights or written consent to adoption, (c) challenging the adoption on the basis of duress or coercion, or (d) challenging the adoption on the basis that the agreement retains some aspect of parental rights by the relinquishing parent(s).

How may an agreement be terminated or modified?

Citation: Rev. Stat. §§ 43-159; 43-165; 43-166

After placement of a child for adoption, the department may enter into an agreement with the biological parent or parents to alter the original contract made between the department and the biological parent or parents when it is determined by the department, in consultation with the adoptive parent or parents, that certain or all exchanges of information are no longer in the best interests of the child.

The court shall not modify an order issued under § 43-163 unless it finds that the modification is necessary to serve the best interests of the adopted child as well as the following:

• The modification is agreed to by the adoptive parent or parents and the birth parent or parents.
• Exceptional circumstances have arisen since the order was entered that justify modification of the order.

A court in which a civil action is filed may enforce, modify, or terminate a communication and contact agreement entered into under § 43-166 if the court finds the following:

• Enforcing, modifying, or terminating the agreement is necessary to serve the best interests of the adoptee.
• The party seeking to enforce, modify, or terminate the agreement participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition.
• When seeking to modify or terminate the agreement, a material change in circumstances has arisen since the parties entered into the agreement that justifies modifying or terminating the agreement.

The court shall not act on a petition to enforce, modify, or terminate the agreement unless the petitioner has participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition.