New Jersey versus New York open adoption laws represent good counterpoint examples. In almost all of the adoptions in my law practice, adoptive children know the identity of their birth mother, and increasing numbers of birth mothers know the identity of the adoptive family. Post-adoption contact through text and photo exchanges, and sometimes visits, is the norm, but agreements to stay in contact after adoption are not enforceable under many state laws.
New York adoption law provides for enforceable post-adoption contact agreements. The agreement is part of the birth parent’s consent, and the court in which the adoption proceeding is filed must approve it. If an adoptive parent or birth parent does not honor the agreement, a proceeding can be brought in court to require compliance.
Under New Jersey law, post-adoption contact agreements are not enforceable in court. While many adoptive and birth families create nonbinding agreements to stay in touch after the adoption, if one party does not honor the agreement, no proceeding for enforcement can be brought in a court.
In agreements for ongoing contact between adoptive and birth families, whether legally enforceable or not, as in New Jersey versus New York open adoption laws, the adoptive child’s best interest is the overarching guideline, and the most successful arrangements are those based on trust and mutual respect. Access after the adoption can provide emotional healing for birth parents and adoptees, vital medical and social information, and answers to questions about identity for adoptive children.
