Postadoption Contact Agreements Between Birth and Adoptive Families - New Hampshire

What may be included in postadoption contact agreements?

Citation: Rev. Stat. § 170-B:14

Nothing in this chapter shall be construed as encouraging, discouraging, or prohibiting arrangements or understandings reached between prospective adoptive parents, birth parents, or the child-placing agency with respect to the postsurrender exchange of identifying or nonidentifying information, communication, or contact.

In adoptions involving a child who is under the legal custody of the Department of Health and Human Services, a voluntarily mediated agreement shall be enforceable as provided in this paragraph. The purpose of this paragraph is to facilitate the timely achievement of permanency for children who are in the custody of the department by providing an option for the parties to enter into a voluntarily mediated agreement for ongoing communication or contact that is in the best interests of the child, that recognizes the parties' interests and desires for ongoing communication or contact, that is appropriate given the role of the parties in the child's life, and that is legally enforceable by the courts.

An affidavit made under oath shall accompany the agreement affirmatively stating that the agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud, or duress.

To be approved by the court, the agreement shall contain the following statements:

• The agreement is entered into pursuant to the provisions of § 170-B:14.
• Any breach, modification, or invalidation of the agreement, or any part of it, shall not affect the validity of the surrender of parental rights or the decree of adoption.
• The parties acknowledge that both the birth and prospective 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.

Who may be a party to a postadoption contact agreement?

Citation: Rev. Stat. § 170-B:14

Prior to the entry of any adoption decree, the department, prospective adoptive parents, and birth parents may voluntarily participate in a court-approved mediation program in order to reach a voluntarily mediated agreement.

If the department is the only party unwilling to participate in mediation, the department shall provide a written explanation of its position to the court, the birth parents, and the prospective adoptive parents.

Other people may be invited to participate in the mediation by mutual consent of the department, birth parents, and prospective adoptive parents. However, these invitees shall not be parties to any agreement reached during that mediation.

If the child who is the subject of the agreement is age 14 or older, the agreement also shall contain the written assent of the child.

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

Citation: Rev. Stat. § 170-B:14

The court shall approve the voluntarily mediated agreement if the court determines that:

• The agreement is in the best interests of the child. In making this determination, the court may consider:
  • The length of time that the child has been under the actual care, custody, and control of any person other than a birth parent
  • The desires of the child's birth parents and the child as to the child's custody or residency
  • The interaction and interrelationship of the child with birth parents, siblings, and any other person who may significantly affect the child's best interests
  • The adjustment to the child's home, school, and community
  • The willingness and ability of the birth parents to respect and appreciate the bond between the child and the adoptive parents
  • The willingness and ability of the adoptive parents to respect and appreciate the bond between the child and the birth parents
  • Any evidence of abuse or neglect of the child
  • The recommendations of any guardian ad litem
• An affidavit made under oath shall accompany the agreement stating that the agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud, or duress.

The court issuing final approval of the agreement shall have continuing jurisdiction over enforcement of the agreement until the child reaches his or her 18th birthday.

Are agreements legally enforceable?

Citation: Rev. Stat. § 170-B:14

Except in cases involving the department, no such arrangement or understanding shall be binding or enforceable. In adoptions involving a child who is under either the legal custody or guardianship of the department, a voluntarily mediated agreement shall be enforceable as provided in this paragraph.

Any breach, modification, or invalidation of the agreement, or any part of it, shall not affect the validity of any surrender of parental rights or the interlocutory or final decree of adoption.

To be enforceable, a voluntarily mediated agreement shall be in writing, approved by the court prior to the date for entry of any adoption decree, incorporated but not merged into any adoption decree, and shall survive as an independent agreement.

A voluntarily mediated agreement need not disclose the identity of the parties to be enforceable, but if an identity is not disclosed, the unidentified person shall designate a resident agent for the purpose of service of process.

A voluntarily mediated agreement shall cease to be enforceable on the date the child turns age 18.

How may an agreement be terminated or modified?

Citation: Rev. Stat. § 170-B:14

A party to a court-approved, voluntarily mediated agreement may seek to modify, enforce, or discontinue the agreement by commencing an equity action in the court that approved the agreement. However, before a court may enter an order requiring modification of, compliance with, or discontinuance of the agreement, the moving party shall certify that he or she has participated, or attempted to participate, in good faith in mediating the dispute giving rise to the action prior to filing the action. A court order for modification, enforcement, or discontinuance of the terms of the voluntarily mediated agreement shall be the sole remedies for breach of the agreement.

The court may modify the terms of the voluntarily mediated agreement if the court finds by a preponderance of the evidence that there has been a material and substantial change in the circumstances and that the modification is in the best interests of the child.

A court-imposed modification of a previously approved agreement may limit, restrict, condition, decrease, or discontinue the sharing of information and/or 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 the parties to the agreement. The court also may impose appropriate sanctions consistent with its equitable powers but not inconsistent with this section, including the power to issue restraining orders.

Nothing in this section shall be construed so as to abrogate the rights of the adoptive parents to make decisions on behalf of the child, except as provided in the court-approved voluntarily mediated agreement.