By:  Gerri Sperling, Counsel[1]

Adult adoption has existed in Pennsylvania for many years and until recently the law governing the annulment or revocation of such an adoption, i.e. that revocation/annulment is only available in the case of fraud, applied equally to all adult adoption situations regardless of the identities of the parties and of the specific reason(s) for entering into the adoption.

On December 21, 2016, the Superior Court of Pennsylvania issued a decision which carved out a very narrow exception. The litigants were a same-sex couple who had been together for over 40 years. In 2012, they decided to go through the process of an adult adoption as it was, at the time, the only way for them to become a family.

When same-sex marriage became legal (first in the Commonwealth of Pennsylvania in 2014 and then as a fundamental right under the Constitution of the United States in 2015), the couple sought to annul/revoke the adoption decree in order to become a family through a more conventional means, i.e. marriage.

The lower court denied the petition for annulment/revocation asserting that it did not have the authority to annul/revoke the decree and that there were no grounds to do so. The Superior Court reversed the decision of the lower court. It held that the denial of the petition acted as a barrier to the couple’s ability to marry in violation of the Fourteenth Amendment and that the Orphans’ Court, as a court sitting in equity, did, and does, have jurisdiction to annul/revoke the decree.[2]

It is important to recognize and understand that the exception created by the Court is indeed very narrow as it applies only to same-sex couples who previously obtained adult adoptions and now seek to annul or revoke the adoption decree in order to marry. Thus, the holding likely does not open the door for leniency in revocation/annulment of an adoption decree generally, as it pertains to but one specific circumstance.

Please contact me at (412) 281-5423 or gsperling@smgglaw.com  if you have any questions about the adoption process generally, be it child or adult, or about this recent decision.

[1] The author would like to recognize the significant contributions of Lydia A. Gorba, University of Pittsburgh Law School class of 2017, to this post.

[2] In re Adoption of: R.A.B., 2016 PA Super 295 (Dec. 21, 2016).

Growing your family through adoption is a journey through a complex legal process, but the outcome makes the trip worth every step.  However, before you embark on the journey, you need to understand the various routes that you can take.  There are many options available to individuals and couples who choose to adopt, but each option raises its own legal, practical and personal questions.  Are you only interested in adopting a newborn or very young child?  Are you willing to adopt a child of a different race?  Will  you consider international adoption?  How much risk are you willing to take regarding a potential disruption of an adoption placement?  Will you consider adopting an older child or sibling group?  Are you willing to agree to some type of openness or continuing contact with the child’s  birth family?  And how much can you afford to spend on the process?

Your answers to these questions will determine the adoption options that will work best for you and your family.  If you want to adopt a newborn, you should consider working with a licensed adoption agency which provides counseling to birth parents.  However, even that decision raises additional questions.   Should  you work with a local agency or a national adoption agency?  The advantage of working with a Pennsylvania agency is that your adoption will be compliant with Pennsylvania  law.  The Pennsylvania Adoption Code places restrictions on what adoptive parents may pay for in connection with an adoption.  For example, under Pennsylvania law, adoptive parents are not permitted to pay for any living expenses for a birth parent.  Other states permit the payment of living expenses, sometimes with a cap, or sometimes limited in time.  If you adopt a child from another state which permits the payment of expenses not permissible in Pennsylvania, and you pay for some of those expenses, you want to make sure that you can finalize the adoption in that state, because not all Pennsylvania courts will permit you to finalize the adoption in Pennsylvania.

Also, you should know that an adoption really consists of two legal proceedings; one to terminate the parental rights of the birth parents and the second to finalize the adoption.  Generally, an  adoption cannot occur until the parental rights of the birth parents have been terminated.  Every state (and country) has its own requirements for the termination of parental rights.  In voluntary terminations of parental rights proceedings Pennsylvania provides birth parents thirty days to revoke their consents to adoption and a birth mother cannot sign a consent to adoption until at least 72 hours after the birth of a child.  Other states have much shorter revocation periods.  If you are risk-averse, adopting from another state with a shorter risk period may be preferable, but then your adoption must comply with the requirements of the Interstate Compact on the Placement of Children (“ICPC”), which governs the transfer of a child from one state to another for the purpose of an adoption.

Finally, Pennsylvania amended its adoption laws several years ago to create a process for open adoption agreements to be legally enforceable.  Some other states have similar laws, but many do not.  Now, for all adoptions finalized in Pennsylvania, birth parents and adoptive parents must receive notice that if they all agree, they can enter into a post-adoption contact agreement that must be submitted to the court finalizing the adoption for approval before the adoption becomes final.  If the court approves the agreement, that agreement is legally enforceable; that is, either the adoptive parents or the birth parents may bring an action to enforce the agreement.  However,  if there are any disputes arising under the agreement, the court is to determine and act in accordance with the best interests of the child.

The adoption process is complex, confusing and at times convoluted.  However, as a parent of an adopted child, I can say without equivocation that the end result, my daughter, was worth every twist and turn on our adoption journey.  Please contact me at (412) 281-5423 or gsperling@smgglaw.com  if you have any questions about the adoption process.