Derek | Legal Considerations

0:00Welcome to the Open Adoption Project. I'm Lynette Nelson and in this episode my husband Sean Nelson will be interviewing Derek J. Williams. Derek is a Utah adoption attorney and he's also an adoptive father. And he shares some really great insights in this episode talking about legal considerations and also ethical considerations in adoption. We really enjoyed this episode. It's a pretty long one, but we know that you're going to love it too. It's very informative and helpful. When we first became approved to adopt years ago,

0:33I remember we had so many questions about the legal aspects of adoption. And every time we wanted to ask a lawyer about it, it would cost a ton of money because talking with lawyers is expensive. And Derek is really great about just sharing his knowledge and he is very invested in helping adoptive couples and the whole adoption triad and community. We are so grateful for him for sharing his expertise with us and helping all of us benefit from his knowledge. And we hope that you're having a great 2022 so far. Thanks for listening.

1:12We are now on the podcast with Derek Williams. Derek, thanks so much for taking some time to be with us. My pleasure. Good to meet you. You too. We've been excited to get you on the podcast for some time and are excited for the conversation we're going to have. To get started, can you just help us get to know you a little bit and tell us maybe a little bit about your family and your connection to the adoption world? Yeah. My wife and I met at school up in Rexburg, Idaho back in the day. It was like a long

1:42time ago, but it's early 90s. And ended up moving to Utah after I graduated from there. And I finished my undergrad in Utah and also went to law school in Utah. I'm from Idaho Falls, Idaho. That's where I grew up. And my wife is from a few different places, but high school in Las Vegas, Nevada. I went to law school and came out of it. Well, let me

2:16back up. My wife and I were married for nine years and dealt with infertility like many people and couldn't begin our own family the way we thought we might. But my wife has adopted. She's one of a sibling group of three that were adopted in the six to eight year, six to nine year old range between the siblings. And so adoption was always something that

2:50we were both open to when she was comfortable with. And so after we finally decided to pursue adoption and signed up with an agency here in Utah. And in 2003, we were placed with our daughter, Allison, who is 18 now. And four years later, we adopted our son Ian. And so we have two kids both adopted. And Allison was born a week after I took the bar

3:26exam following law school. So it was a crazy summer of studying for the bar exam. Initially, we were told she'd be due in St. George, Utah, is where our birth mother is from. And we thought she would be due on the second day of the two day bar exam and that I wasn't going to get to go down there and be part of the placement and miss all that. And then as it got closer, they moved her due date a week later. And so I got to finish studying for the bar exam and go take it. And she was born a few days after I finished the bar exam.

4:02So that was neat. That was our crazy summer. But you know, the timing of that is a little bit as to how I ended up getting into adoption law because I was a brand new lawyer, a brand new father all within a week of each other, in essence. And I just felt like I was felt connected to adoption. I felt something special in my heart that tied me to adoption. And I thought, I don't know what it's going to be. But I'd like to somehow if I can use my

4:37legal skills or my new profession to somehow help other families that are building the way that I built my family, then I'd like to do that. And so that began with my own adoption and I watched real closely how the attorney did it. And, and, you know, that began 18 years now of a side practice of adoption law. I have a main practice where I represent

5:08medical providers, doctors and nurses and hospitals and medical malpractice cases. But I always keep and carve out probably 30% of my practices is in adoption law and mostly private adoptions and more complicated adoption situations. So you finished the bar, you had your daughter, then you said four years later you adopted your son. So you made this decision to choose at least in some part to practice particularly

5:41with adoption law. Tell us a little bit about how that's maybe more for changed over time for you and maybe one or two of like the big takeaways of like why I really love doing this. Yeah, sure. So it just happened naturally have been the beginning I wanted to stay involved somehow but I didn't know what that was going to look like. I did some simple agency finalizations in the beginning to get some experience and, and then, you know, as we got as we got our

6:14son. I'm obviously staying closer and connected to adoption and, and meeting more people and being connected more with the adoption community in Utah. And, and it has just evolved over time but the big basically it has never been a business endeavor for me. I've never tried to market and create a full time adoption practice, it's all grown organically. And

6:51referrals and folks that that have passed on my information and all that. I like it that way because it feels like I can keep doing it because I want to do it. And not because I have to in order to support my family and I'll take anything and everything. The reason that's important is it allows me to be myself when I talk to my clients and just say look, I don't, you know, I have no pressure if you choose to go with a different lawyer I'm okay with that. All I really care about what I tell them is all I care about is you

7:24have a good competent, experienced adoption attorney helping you and I'll give you some other names. If you don't like the way my hair looks or whatever. You know, I'll get you to the right people I just want you taken care of and that freedom comes with not feeling the pressure of, like I said, having to make enough money or charge enough to do that to support my family and so that that just frees me up to have a practice that lets me stay

7:58involved, get educated in the complexities of adoption law for my particular state, but do it for personal reasons and because I'm really doing it to help others to have hopefully have positive adoption experiences adoption, as you know, well, is roller coaster and it can be stressful and exciting and sad and happy and scary all within a week. Yeah, everything

8:31in between. Yeah, and I really my goal is to hopefully take the legal side of things and take some of that stress off of my clients so that they can focus on the relationships with their birth parents and building those and hopefully having a little bit less of a stressful experience. Perfect. And I think I mean, I think that's a great segue into us asking you a lot of questions about that. Many of our listeners are hopeful adoptive

9:02couples who are, you know, stepping into this world for the first time or considering adoption and some expectant parents or birth mothers that are listening that might not understand all the complexities and the legal aspects of adoption. So hopefully that by the end of this episode, at least those listening will have maybe many of their questions answered and they can go into a situation a little bit more confident knowing the process and how that all happens. So to get started, let's just address what are the legal aspects of

9:39adoption? I know that's a broad question, but however you'd want to answer that. Sure. So simply put and broadly speaking, the adoptions are legal relationships that have to be recognized by the courts and by the laws and a judge has to put their stamp of approval on somebody else coming into your family that you are not the biological parent of, right? And so there's a process, a legal process that you have to go through to get that approval from

10:12the judge. And so some of the key elements of that that have to be done, no matter what kind of adoption you do is one, you need to address the parental rights of the biological parents in some form or fashion. Number two, the judge is going to want to make sure that you're not criminals and that you're a safe home. That's a home study most of the time for the child to go into. And three, that you have had the child in your home for a

10:53sufficient period of time that the judge can feel comfortable that there's bonding that has occurred and taken place before he signs off on it. He or she signs off on the adoption. And it usually culminates in a hearing with the judge to wrap everything up. We call it a finalization hearing where usually they're happy and celebratory and all the paperwork's done and in there ahead of time. And the judge just comes in and talks to the couple and

11:25gets to see the child and gives his final approval. And judges love finalization hearings. I've had multiple times where due to scheduling and issues, we've asked, Kay, can we, you're not available on this date. We really would like to finalize on this date for this reason and that reason. Can we have a different judge do this? And they say, no, no, no, I don't give away my adoptions. Those are too valuable. I enjoy those too much. I want to do it. So

11:59let's figure this out. But that's just how they view them. It's one of the few ways legal proceedings that judges get to oversee where everybody comes in happy and leaves happy and there's typically no contention or fighting or adversarial feelings as they normally have all day long. Yeah. I can recall the first time that we went to our finalization and being very nervous that the judge was going to, you know, Dima's not qualified to

12:32be parents or something, but it was quite the opposite where it was all smiles and how happy he was that this was happening. And we've had very sweet experiences with all four of our adoptions. Maybe strangely with our fourth, because of COVID, we did it from our living room on, you know, on a conference video call. Yeah, that's how they all are still right now. Today we're still not going to court and it's convenient and there's

13:02pros and cons. The judges love seeing them in person and many of the judges asked to hold the babies and we've taken pictures with them. Exactly. Yeah. So we're missing out on that. In fact, I there's I've done a number of adoptions where I haven't even met my clients in person and we've done the entire adoption, including finalization. And I've only talked to them by phone or seen them on video. And that's a weird little bit of a weird situation and feeling, but it's unique. We take pictures of the computer screen and we, you know, those

13:36screenshots to try to say, Hey, you got a COVID adoption. Let's remember it. So, yeah, make it special no matter what. Well, I think that was a great overview of what needs to happen legally. We have a lot of people that ask questions. And so some of the some of the questions that we'll ask are from listeners. And then if you feel like there are any others that you'd add maybe around this legal aspect of adoptions, can you maybe talk a little bit about the legal approach? What's different for a couple who's doing an agency adoption

14:07versus a private adoption? Sure. And when we refer to a private adoption here today, we're, we're talking about what some call it designated adoption or something like that. It's where there's not a licensed agency involved in helping you through it. And it's not a state foster care adoption. It's, it's just private, we'll call a direct placement between a biological parents and a couple. But an agency adoption, the legal process is the

14:42same in between agency adoption and a private adoption. The question is who's doing the work to get ready for all of this. So in an agency adoption, you still have to file a petition for adoption with the court. And you still have to file the documents and give the judge all of the same information and and wait the same period of time with the child and then go in and finalize and get the stamp of approval, so to speak. So in

15:15that sense, the legal process is the same, regardless of whether it's an agency or private adoption, with one exception. In an agency adoption, what's actually happening legally is the biological mother and biological parents, when they consent, they're consenting to the placement of the child with the agency. The agency actually takes legal custody of the baby at the time that the mother signs her relinquishment and consent to the adoption.

15:51Then the agency has legal custody of the child during this waiting period. And they may place the child with the couple and, and sign a placement agreement, which sort of is like in a, in a divorce situation, sort of like, you know, physical custody versus legal custody, right? So the agency is going to give the couple physical custody, but they're going to keep legal custody. And that's just because their licensing regulations say, you're responsible

16:23for this baby until the finalization of the adoption. And so they keep, they're responsible if something were to happen to the couple. The agency has the baby can take custody of the baby again and, and work with the mother to find a new family or something like that. So that's one difference in a private adoption when a biological mother signs her relinquishment and consent to adoption, the legal custody transfers to the couple at that time, because

16:56there's no agency involved. It's just directly from the couple to the agency or to the, from the birth mother to the couple, excuse me. And so that's one legal technicality that's different about the legal process. The other major differences, like I said, is who's doing the work and an agency adoption. The licensed agency will be responsible for, for taking the relinquishment of the biological parent, for getting the consents of fathers if they're

17:28involved, for checking imputed father registries, for giving notice if that's necessary to certain people, for doing the home study and the background checks. And they'll also have a separate caseworker doing counseling with the, with the parents and support for the parents. And so they're doing all of the leg work, so to speak. The lawyer in an agency adoption really has a

17:58limited role. And that is to file that petition for adoption and wait till the end and go to court for an hour. So when you're, when you're thinking about hiring a lawyer for your adoption, everybody should understand and know that if you've gone through an agency, you've already paid that agency money to do most of the work, a lawyer shouldn't charge you, you know, a large amount of money to do an agency finalization. It costs more to

18:29hire a lawyer to do a private adoption, because in that situation, the adoption lawyer, you're hiring is sort of responsible for making sure that all that other stuff gets done, that that might be handled by the agency or contract with the people. And we'll talk more about that in a little bit, contract with the necessary people to make sure that the support and the services are provided. But the lawyers in charge of all of that and making the decisions about how you're going to go about meeting the laws of the states that you live in. And

19:03that takes more time of the lawyer and his staff. And so you'll pay a lawyer more money in a private adoption than you should in a simple agency finalization. You should. I think that is a great caution. And also, you know, the more educated, hopeful adoptive parents are going into the situation, the better that will be to the better they can ask the right questions and and be willing to ask some of those questions.

19:36I'll add on to that, Sean, that, you know, you said should probably in quotation marks, but certainly agency adoptions can have complications can have contested legal fights and oftentimes, you know, if the agency has to hire a lawyer to represent the agency, they pass those costs on to the couple. Plus, if you have to hire and sometimes even if you have to hire a lawyer

20:06for the biological mother, say if a putative father is contesting the adoption, you know, you could end up with multiple lawyers involved. And so you're right. A caveat I gave you is is sort of in a typical uncontested normal adoption. It shouldn't cost very much to hire a lawyer to finalize that in comparison to a private adoption. There's exceptions for everything for sure. And I love that clarification. Thanks for for sharing that. I think another question that we hear a lot from friends or those that we've meet is how much does it

20:40cost to adopt? Now, that's a huge question to answer. But and I think you kind of alluded to this already, but anything that you would add to to the cost question? You know, it does vary a lot. What I will say is that agency adoptions, those vary in price and cost, depending on mostly on the situation you're presented with and the estimated

21:11costs that the and support expenses the birth mother might need, that sort of thing. But typically an agency adoption generally will cost more than if you're able to find your own connection to a birth mother and and find your own match, I'll say. If you can do that and hire a lawyer in generally speaking, it will cost less. I do a lot of most of my private

21:45adoptions that are uncontested, you know, fairly uneventful where a couple says, hey, we've got my cousin's co workers daughter wants to place her baby with us. We've been matched and connected through our own connect our own contacts. And they call me and say help and I say, Sure, I'll help you with that. And we take care of it. Those, at least in my state here in Utah, we can do for less than $10,000. And agency adoptions are typically

22:20in the 20 to on up range, you know, and so and it's not that that they're overcharging, but they have to help find that match, they do all the work for the the advertising, the marketing, the recruiting and trying to get the birth mothers and the babies in with their agency and, and matching and finding you a fit for your family. And that takes expenses

22:50and overhead and costs and staff and things like that. And so it's not it's not that agency adoptions are just more expensive because they're trying to make lots of money. It's that that's the real cost. And, and there are times that, that a couple calls me and tells me their situation. And they say we've been saving for this number of years for an adoption and, and this is what we're looking for and what we want. And I'll say, really,

23:20it sounds like an agency might be your best route. If you've got some money saved up and this sounds right, then let's talk about an agency and I'm more than happy to refer out to to many adoption agencies. When that when that's a good fit for that couple. Great. So a few times you've mentioned, you know, laws specific to Utah, this is that's where you are. What about considerations for interstate adoptions where a couple or an

23:54individual is going to adopt a child who lives in a different state? What what do they need to be aware of? Yeah, that's a great question. And it's important because a lot of matches today, nowadays come off of profiles that are marketed on websites or social media, or spread through contacts of families in other states or whatever. And, and so a lot of there are a lot of placements that are done across state lines. There is a law that every state in our country has passed called the interstate compact on the placement of

24:27children. If you're into adoption very long, you'll probably hear that term ICPC. And that's what that means that in order to cross state lines with a child, for the purpose of adoption, you have to have the approval of both of those states. There's an administrator and ICPC administrator in the state government of every state, and their job is to review packets of documents and information about the adoption and approve it, the sending state that would

25:00be where the baby's born in the couple will fly out to in this, let's use an example of Florida, and couples here in Utah, the couple is going to fly out to Florida where the birth mother lives, the baby's going to be born, they're going to do a placement out there. And then ICPC process has to be completed, they're going to ask the state of Florida to approve this, they're going to approve it and send it to the state the administrator from the state of Utah, who looks at it and approves it. And once this receiving state

25:35Utah signs off on that packet and that application, then the couple has the green light to travel home with the child. But until then, they're sitting in a hotel with a brand new baby, sometimes first time they're ever parents the first week their parents they're spending in a hotel and waiting for that magical approval to be able to fly home or drive home whichever state that is. And so I'm sure it varies from state to state, but do you feel like there's like an average amount of waiting time? Yeah, the administrators tell us we should say we

26:09should tell our clients seven to 10 business days. I typically tell my clients that they will probably spend one weekend in that other state, but not two. It depends on which day of the week the baby's born, how quickly we can get the packet together because because we part of that packet is the signed relinquishment and consent of the birth mother that can't be even signed in Utah until 24 hours after the baby's born some states it's 48 or 72

26:42hours. And so you just have to you have to wait until everything is done and ready to be submitted. And that can determine which state you're in can determine how long that might be. But typically, it's it's three to five days is my experience if it's an uncontested simple ICPC, but it depends on the backlog and in a particular state government's office. And if the administrators out sick that day or on vacation and someone else is covering

27:12and could all kinds of things come up and happen that can delay it by a few days. But they really work hard and try hard to process them as fast as they can. And for the most part, like I say, it's it's usually just a few days that you're waiting for that approval. Great. Great. I think that that's probably a question that many have. And you're right with a lot of people matching even on social media or with agencies in different states.

27:42This is happening more and more. One other thing that I'll add. Well, since we just talked about costs, I'll note that obviously you can tell when you have two states involved. The first thing I do when I get told about a match or a potential match involving two states is I contact a part of a network of adoption attorneys nationally. And I'll contact one of my trusted adoption attorneys in that state and say, hey, I've got this situation.

28:13Birth mothers in your state, couples in mine. Let's talk about your state laws versus my state laws. Let's figure out what is the most efficient and beneficial place for this adoption to happen. And sometimes many times I have told my clients, look, you're better off hiring a lawyer at that state and doing the entire adoption in that state. And that's to your interest for this reason or that reason or cost or whatever. Think about it. Or sometimes it's better if we do things in my state and we handle it under our state law. And so that

28:49coordination and cooperation is really important and it's best to do that on the front end of the beginning. But where I was going with this is more often than not, we have to hire some sort of professional, either a lawyer or sometimes we can use an adoption social worker or agency in that other state to help with the birth mother services, maybe to address birth father laws of that state and going to court to get a certain order that we need

29:20from that state court that they can then send back to us to use to finalize here. And so if you're going to match or if you get matched in another state, then that's going to obviously affect the cost of hiring that other professional. And so everything I said about what we can do in Utah and private adoptions goes out the window when it's an interstate adoption because it's not necessarily double the cost. I try to be careful not to duplicate any

29:50work, but there's just certain things that have to be done on the ground in that state and we want to make sure that we're protecting the biological mother and her interests and giving her the support and counseling that she needs where she is rather than from afar. And so that's going to come with some costs. Plus, obviously the travel costs, the hotel costs if you're flying versus driving and all that can be added in. Yes. Great, great addition. Those are great thoughts. You know, we've adopted four children

30:22and all of our children were born in the state that we live in. And so we've never had to do to deal with ICPC. Yeah. And so this is kind of that realm of the legal part is still a little foreign to me. So that's, that's a great thing to consider. Another thing I think when we were first jumping into the adoption world, this, this term got thrown around a little bit and maybe you can help explain a little bit, but sometimes the term legal risk placement. Can you share a little bit about what that is and what, you

30:58know, what the community might want to know about that? Sure. That's, that term is used. I have all of my clients sign in the, in the medical field. It's sort of like an informed consent, like you're agreeing after having been told something you're agreeing and accepting this risk. It's a little bit like that in the legal world for adoption, which is we use and have my clients sign a legal risk acknowledgement or consent whenever we're proceeding with an adoption where we don't have the actual

31:36consent of one of the biological parents. So if we're relying on a check of the paternity registry or a default after giving notice or some, some sort of particular portion of the state's adoption laws that allow us to, to, to move forward and proceed with finalizing the adoption without having the actual consent written by, usually it's an unmarried biological

32:07father is when that most often comes up. But anytime you're proceeding without the consent of one of the actual consent to one of the parents, that's technically considered a legal risk because the clients need to know we're doing it this way. And while it's highly unlikely that anything will come of it, we just want you to know there is a possibility that of this unmarried biological father or a father that purports to be the biological father

32:41could come forward and challenge this and contest it and, and absent a consent where that's a risk. And so a legal risk statement is just them recognizing and acknowledging that there's that possibility. You mentioned the paternal registry. Can you share a little bit more about what that is and how that works? Yeah. And that's a state by state issue. Some states have paternity registries and other

33:14states do not. And so whatever state you're living in, that's something that, that you can ask the lawyer in your state how that works. But it's typically tied. It's a system that many states have adopted because when we're doing an adoption, biologically, it's really easy to tell who the mother of the child is, right? We know where that is coming from. So we know who the mother is. But even though mom birth mother might say it's this

33:45person or it's this guy, we don't, under the law, we don't have any way of really knowing that. And so the law says, and at least in my state, the law says if you're married, then the husband is presumed to be the father of the child. That's not always the case, obviously, but that's, they automatically have legal rights. It could be considered a legal father of a child if they're married. If a biological mother is not married and

34:18wants to place for adoption and says, this is who I believe it is, we'll go out and if it's appropriate, get the consent of that father if they want to be involved and they want to offer the consent and that sort of thing. But oftentimes, many states will say it's too difficult to pin down and know exactly and precisely who that is. So for example, the legislature in my state in Utah has determined that we're going to put the burden on an unmarried

34:49biological father that if they're on notice, once they have intimate relations with a woman that they could be a father if pregnancy results and it's their burden to come forward and to assert those rights and do certain things in order to establish the parental rights. Because if you're not married, there's no automatic parental rights in an unmarried biological father. They have to do certain things to create or establish or have legally

35:19recognized those rights as a father. They don't just get them naturally because they're the biological father. So the paternity registry is one way that some states do that as part of that on the list of things that that unmarried biological father will have to do is he'll have to register and sign up on that registry to say, I'm asserting a right, I want to be the father, I want to give notice that I've gone to court and I'm trying to establish

35:53my paternity, I've filed a paternity action, that sort of thing. It's a registry that allows those of us that are working in adoptions then to go check that registry. And for example, in my state, if an unmarried biological father hasn't done the certain steps that they need to do, including getting on the registry by the time that the mother signs her relinquishment of parental rights and consent to the adoption, which as I said earlier in my state happens

36:25at 24 hours after the baby's born. If there's the next day after she signs her paperwork, we go do a check of the registry, the paternity registry in my state. And if it's negative, if nobody has signed up, then under our law, the laws of our state, they waive any rights to that child, they waive all paternity rights and they're done and out and we move forward with finalizing the adoption with just a check of that registry. So those laws and the intricacies

36:59of those, how those paternity registries work and the impact it has on the legal process again is state dependent. And so it might not work the same way as we use it here in Utah, but the general principle is the same as it's a place where a father that does not have yet paternity rights established legally can go and register and sign up to demonstrate that he wants involvement or is attempting to set up and establish those rights.

37:36Great. So while we're talking about rights, maybe we can talk a little bit about expected parent or birth parent rights, legal rights before and after a placement. Maybe can you talk to maybe both sides of those? Yeah, sure. So the short answer to that is, is expectant parent or biological mother, if that's what we're sort of focusing on. If she's married and her husband's involved

38:08in the adoption as well, then both of them obviously, but prior to the time that they sign their relinquishment and consent, their relinquishment of parental rights, all the way through the pregnancy, all the way up to the hospital, all the way up to whether it's 24 hours or 48 hours, six months or two years or whenever after the baby's born, they decide to place for adoption until they sign that paper relinquishing their parental

38:40rights. They have all the rights of the child. Nothing changes just because they picked a couple and said, we intend to place this baby for adoption with you. There's no such thing as sort of contract law that says, oh, well, you agreed to place your baby with us and you don't ever get to change your mind. You know, that's just not the case. A biological parent, expectant parent has all the rights of a parent until they sign them away. And

39:14so that's a risk that every couple that's adopting has to be aware of. And hopefully their agency and their lawyer talks to them about, which is up until the time that she signs her paperwork, she has the right to change her mind and parent that child. And I've had many circumstances, some of them really difficult and traumatic on my clients where that has happened and it's just difficult and it's hard for the couple. But at the same

39:50time, it could be a wonderful, beautiful thing for that biological mother who's making the decision she feels like is best and right for her. And we always have to go into this if we're adopting and building a family this way, we have to go into with our eyes open and aware and prepared to support this biological mother, no matter what her decision ends up being. I guess a follow up to that. And I love the way that you worded that very, very, very

40:22much. Thinking about the hopeful adoptive parents or parent, what could we do to encourage them or what advice might you give them to make sure that they are being ethical or not pushing like coercing an expectant mother? Yeah, it's really important. And I claim to be and I hope I act this way in my practice, but I am an advocate for birth mothers throughout this process. I really believe strongly it's

40:58important that they have support. I try to create a team, a social worker or a lawyer or whatever is appropriate for this situation that's dedicated just to the biological mother, someone that she has to go to if she needs clinical counseling, if she needs legal advice, if she needs answer to questions, she needs to have her own person. The couple's going to have their lawyer, their social workers, she needs somebody on her team and her side to confidentially be able to talk to. So that's my first point. It's really important that

41:33whoever you use to run your adoption, whether it's an agency or a private adoption, the first thing that a couple ought to be asking is what kind of support and what sort of system do you have that you're going to use to take care of our birth mother? And they should be an advocate for their birth mother. So that's number one. Number two is I think if you go into it educated and knowing that this is something that she is going to be difficult

42:10for her, is going to be emotional for her through the pregnancy and through this ultimate decision to place for adoption. And if the couple's educated and knows and trusts that there's that risk there that she could change her mind, if they know that upfront going in, I hope that they would be more understanding if that were to happen. But along the way, last thing I'll say is hopefully they have time to develop a relationship with that biological

42:44mother, get to know that woman, spend time over lunches or dinners or over Zoom or however over text and phone calls, getting to know each other. Because if you do that, you're going to love her and you're not going to want to pressure or coerce or threaten or that should never be a part of any adoption. And so I don't know, something is going wrong with the process if the couple feels like that they have to do that or turn to those

43:22feelings and those kinds of pressures. Now, I will just say, sometimes these things happen quickly. Within a week, I think one of yours was really quickly if I remember your prior broadcast. Yeah, and they come together super fast and a match happens and you don't get time to develop that relationship. And so there's not as much closeness and it might be easier for it to be a superficial relationship. And the couple's excited and stressed and

43:52wants this baby so bad, it's our first one and they may not feel as strongly about that birth mother. And so there might be a tendency to say, oh, she's going to change her mind, we got to get her social worker in there and we got to get her to talk her out of it. And that the professional you're working with, the agency or the lawyer should be competent and capable of talking that couple through that situation so that that doesn't end up happening. And the birth mother doesn't feel pressured, because that's the quickest way

44:24to have an adoption overturned legally and challenged is if a birth mother comes back and says I was threatened, I was coerced, I was pressured into signing this, it was not my decision. And if the evidence is supportive, and there's text messages or emails or video videos or whatever that shows pressure from the couple, then a judge may be inclined to let her out of that consent and that adoption won't happen.

44:54Yeah, I think there's a lot that still needs to happen to make adoptions more ethical and really to support expected parents as they go through the process. But I think that that counsel or, you know, recommendation is really, really important that we need to make sure that we're providing for them everything that they need and really be okay, knowing that they can change their mind at any point. And as hard as that's going to be, it's every

45:27right of theirs to make that decision. And I admire those couples that can say we understand and guess what, we're going to stay in touch with you after and we'd love to hear how this child does with you and can we still be your friend. And it's not as hurtful as it might be that an adoption is disrupted. I've had a few clients that have demonstrated incredible love and have really shown the

46:02birth mother that that love is real and that's admirable. It's not easy to do when you're hurt by a change of mind after you've been led to believe that this was going to be your child. Those feelings are real for the couple too and I'm not trying to discount and say you should just brush those aside because anyone that has been through a failed adoption has felt that and it's real and it's hurtful and it's difficult. And so it's heavy for

46:36everybody involved. Yeah, it is really difficult. Kind of along the same lines. Sometimes I remember having family members or friends who weren't as familiar with the adoption process. I often got questions like, well, aren't you afraid that biological parents are going to come back and take baby later or can they change their mind? What are the legal rights of a couple or an individual that places a baby after relinquishment, after papers have been signed? Maybe talk us through

47:12that. That's a great question. I'm glad you brought it up. That varies state by state as well. Some states have what's called a revocation period, which means once the birth mother signs she has 48 hours or 72 hours to revoke that consent. Most, I think most states it's just a few days like that. In my state, in Utah, there is no revocation period so it's

47:44effective and irrevocable at the time that she signs that. And that's something that we carefully address with the birth mother to make sure she knows that before she signs. It's written in the relinquishment and consent. And that's something that the attorney or social worker that's helping her with her paperwork carefully goes over and helps them understand. But in some states there is a short period of time where she can change her mind and undo it. So that you need to ask, make sure you ask that question so the

48:17couple knows ahead of time what the risk is, what the timeframe is, when they can sort of breathe a sigh of relief, that sort of thing. With a biological father, it all depends on the situation. It all depends on the circumstances, married, unmarried, that sort of thing. If the father signs a document, signs a consent, then it's typically effective at the time that it's signed, depending on the state. But in my state it is. I will say that many

48:49states have a law similar to what we have in Utah, which is that we have a law that says that an adoption cannot be challenged for any reason by anyone more than one year after the adoption is finalized. So no matter what happens in the adoption, if no one challenges it, there's no issue for one year after the court signs off on it, then they can't bring

49:20something up in five years or 10 years or something like that. It's solid. And even during that one year, you know, if the lawyer or the agency did what they were supposed to do the right way and the judge finalized the adoption, then it's very, very difficult to go undo an adoption or get out of a consent that you've signed. That's a really, really high burden and bar to meet in order to have that done. So most of the time, if you follow

49:50the process and you have a professional involved that does things the right way, then it should be safe and secure. Great. I think maybe we'll have another question here just in a second that I think we'll build on this, but I think it's really important to point out to, to hopeful adopt a couple's adopt a couple's that if you promise something or you say something before placement and change your mind or, or just go against what you told a birth parent

50:23or expect a parent, um, that's pretty crummy. Um, is there anything like specifically in the legal, um, in the legal documents or is part of finalization where I guess it's probably it may differ state to state, but is there any way to like write in, uh, you know, openness or include that? How does that work? So that, uh, that's another one. Everything we talk

50:54about a state dependent, but, but, um, that's one that's state dependent in the sense that there is a such thing as an open adoption agreement or an open, uh, actually it's called a post adoption contact agreement, a PACA P a C a post adoption contact agreement. Those in some States are enforceable by the court and by the judge. So if you sign a PACA, a

51:25post adoption contact agreement, the biological parents and the adoptive couple both sign this and it outlines the terms of their open adoption. We're going to have this many visits. We're going to give you an update this many times a year. It'll be through pictures, letters this way, that way, whatever your agreement is, you put it down into writing, uh, in some States, those are enforceable just like a divorce decree, right? So if someone doesn't do something, the biological parent can take them back to court and challenge and force

51:58them to do it. Uh, my state, Utah is not one of those States post adoption. Contact agreements are not enforceable in our state. There's that's a policy decision by the individual state legislatures. There's, there's pros and cons to, to enforceable pockets and some legislatures feel like that just, you know, we're going to create more divorce law or family law, more litigation and fighting for years to come over these kids. And, and that,

52:32um, the policy consideration is that these new parents that are, that are going to be the parents of this child, um, ought to have the ability to do what they feel like is best for that child in relation to the ongoing communication and relationship with the biological parents. And so some States differ and disagree and feel like, uh, it ought to be the other way. And that's a state by state consideration. What I will say though, is even though, um,

53:05they're not legally enforceable in Utah, it's, it's a good idea to, if, if either side is concerned about, um, whether that's going to continue after, uh, maybe it's a quick match and they have not had time to make that relationship and build the trust that hopefully comes between those two parties to an adoption, then a lawyer, an agency ought to be willing

53:35to put that in writing and have both sides sign a good faith sort of agreement. It might not be enforceable in court, but at least it's outlined on paper or documented somewhere that this is what we both agreed to. And it, and it puts a little bit of more responsibility on that couple to make sure they do follow through with what they promised. Um, and so I'm, I'm totally good with doing that. If, if, if we sense that's an issue, I recommend

54:06it often, many times the couples have a relationship built up and the biological parents and the couple both say, no, we don't need you to worry about that. We're good. We trust each other and, and you know, it, it ends up being something that I, I recommend the biological parent really talk to their social worker or a lawyer about, and be honest with someone confidentially as to how they feel about that. And because what happens is after the fact,

54:38oftentimes things change or something happens and they say, I wish that I would have got that in writing. I wish that I would have done something more upfront. And, and as a, as an adoption lawyer, those are times that I don't like to hear that because that may mean that, that my clients or the couple are not following through. Um, and that, that would be sad and difficult. Having said that, I will say circumstances often change and

55:08there may be valid reasons that a couple needs to change the contact for the safety of the child or for the rest of their family. Um, if, if, uh, if there's, you know, illegal substances involved or, or other issues that can, can present, um, harmful or risky exposure to the children, if they have contact, you know, those are all things that parents do have to protect their children and have the right to protect their children. And so it

55:39doesn't, it's not either side, but for the most part, I would say couples very much have to go into an adoption being deciding what they're willing to do in terms of openness and sticking to that because it's so hurtful. I hear a lot, actually, um, my part of the Utah adoption council, we have representatives of birth mothers and agencies and all aspects of adoption. And I've, I've heard in the last number of months about how many, many birth

56:12mothers are being hurt and being, um, uh, harmed emotionally and psychologically by a change in the way the couple is treating them and their open adoption and they feel hopeless and, and it's really sad and difficult. And so, um, I, I'm doing everything I can to, to promote again, taking care of and respecting and recognizing the value of our biological parents that are doing incredibly amazing things to allow us to be parents as adoptive

56:47couples. And we have to respect them and love them and, and, um, do whatever we can to make sure they stay emotionally healthy. Yeah. I would say our values and our hopes align with that exactly that we never want to over promise and under deliver, um, as much as we may want to add another child or a child to a family, um, we have to be very honest. And I think some of the things you said about connecting, developing just a good, genuine

57:21relationship with the expectant mother or expectant parents, um, is going to do amazing things for your relationship afterward. Uh, there are, like you said, some instances where you adopt a baby overnight, which we've done, and you have to make a really concerted effort to establish that relationship and keep it alive. Um, in the, in that, in the, in that first few weeks and months, um, so that, um, that openness can be a healthy thing for both

57:53sides. Yeah. And Sean, you and Lynette, I just want to say your whole podcast is devoted to this topic and you've got the other professionals and this is not this, this issue of openness and open adoptions and relationships is far more of a social services type issue than it is a legal issue. You asked me the legal question and I answered it in 10 seconds or something. And then I went on for five minutes about the social aspect of it and the emotional

58:23aspect of it, because it isn't a real big legal issue. Um, but it's such an important issue and you're the name of your podcast, um, is, is that, and your focus is on that. And so I'm, I'm really glad that that's why I love your podcast because you, you're able to dive in deeper to all of these issues on a much better level than a lawyer, stiff lawyer can. Well, I wouldn't say you're a stiff lawyer and you're a very experienced, especially

58:56in the adoption world personally. So, uh, it's important for us to understand what legal aspects there are, but that those are tied with a lot of other things. So I loved your answer to that question. Um, maybe just one or two more things before we wrap up. We've had some people ask questions. What, what the legal difference is between adopting, um, maybe a relative, um, you know, your sister is expecting a baby and wants to place with

59:29you or, um, or there's also like step-parent adoptions. Can you speak to some of those maybe different adoptions that aren't typical to the, the infant adoption? Yeah, for sure. Cause I do a lot of those. I, um, it may or may not be a surprise to you, but I get an, an incredible number of grandparents whose children end up becoming addicted to substances or, or have other problems or crises. And, and the grandparents end up

60:00adopting their grandchild. And I do a lot of grandparent adoptions that way where, where they're stepping in to help take care of their grandchildren and, um, other family adoptions, cousins, nieces, like you said, that sort of thing. Um, I, um, the biggest legal difference to answer the question is there are exceptions to the laws in many States for the requirement that you have a home study, right? So normally everyone that's adopting has to have an adoption

60:35home study done by a licensed social worker. And those are, those are expensive. I mean, they can cost seven to 700 to a thousand dollars for an adoption home study. And so it's an investment and it's a, it's a big cost as part of that process. If you're adopting a relative depending on the degree of relationship of that, um, of between the mother and the biological mother and the adopting couple, that may be waived and you do not have to

61:06have a home study done. And so, um, it can be simpler and easier and less expensive for a family adoption. Step parent adoptions are generally the same. The biggest issue with a step parent adoption is addressing the biological parents rights. That's not that you're not married to, right? So the petitioner in a step parent adoption and most of the time is, is a second husband to the birth mother or a husband to the birth mother. When she

61:37had a child earlier on with, when she wasn't married, that husband, now she gets married and the husband wants to adopt her child, um, dealing with the biological father's parental rights if they exist or establishing that there hasn't been a relationship built and therefore he's waived them, you know, that sort of thing. That's, that's the biggest legal issue in a step parent adoption, uh, is addressing that prior, um, biological parents rights. But there's also no home study required in a, in a step parent adoption. Usually you're

62:12just getting the criminal background checks and the checks of the state's child abuse database, those sort of checks done. But the biggest difference is no home study. Um, I will say with a step parent adoption, there is a one year requirement that the, that the adopting parent has to live with the child for one year prior to when they can finalize the adoption. Um, with a family adoption, you still have the six month waiting period.

62:42These are both Utah laws, I should say, um, the six month waiting period to finalize. But otherwise, um, the process is generally the same. The biggest exception is no home study is required, um, when it's a family. And if you're, if your family, if it's a family related adoption across state lines, there is an exception under ICPC if the family relationship is within a certain degree as well. So you may not have to comply with the ICPC laws

63:14if, if you're related close enough. Great. I think that that would answer most questions that people have. So that's really, really helpful. So in a lot of adoption situations, um, either in an agency adoption or a private adoption or independent adoption, like we've talked about, um, there are, um, expenses that expectant parents can occur that can be passed to the adoptive parent or adoptive parents. Can you speak to that just a little

63:45bit? I know that there are just different states have different limits. Uh, what, what types of things can be purchased can, yeah, just speak to that for a fair. And that's a, that is a big topic and we could probably do a whole nother episode just on that one. Um, from the, I'll just keep it to the legal and, and maybe defer on sort of the ethical side of things, cause that presents major ethical issues that adoption world is, is struggling with or, or combating right now all over the country, agencies, private adoptions,

64:19facilitators, everybody's got sort of the fingers in the pie and wants to be paid and the costs go up and all this sort of stuff. But that expenses and what, what, um, what birth mothers are allowed to be paid or what expenses can be paid as a, as a big ethical issue setting that aside, legally speaking, the laws of most states allow an adoptive couple to pay certain expenses for the biological parent that relate to the pregnancy or the

64:52adoption. So, um, you're right that each state defines differently what is on that list. Uh, but generally speaking, it includes, it can include housing. You know, you don't want your birth mother out on the street or in a shelter or something while she's pregnant and planning to place the baby. So a rent or housing, food, nutrition, um, utilities,

65:23keeping the heat on in the winter, you know, those sorts of things, transportation, getting to and from the doctor for visits, you know, transportation. And so those are broad categories, medical expenses, obviously, um, those sorts of things are the, are the broad categories that most states allow an adoptive couple to help with. And, um, some states do have caps, might be $2,000 or $5,000 or something like that. Many states do not. My state in

65:57Utah, there is not a cap on the dollar amount. Um, and that's a fair debate whether there ought to be or not, but I think those opposed to caps would say, you know, if the birth mother matches with a couple in her second or third month of the pregnancy and there's six, seven more months to go and she's, month five gets put on bed rest or something and can't work. And then, then there's needs to be a monthly assistance that over five months

66:31is going to add up to more than $2,000 or something. Right. And so there's very valid arguments on both sides about whether that ought to be capped. It certainly cuts down on the fraud and, and the, many of the ethical issues. If you have a state that caps it at a low number, because you're just not dealing in the numbers that create the incentive and the draw for the fraud and, and the abuse like that. And so, um, but legally speaking,

67:02the last thing I'll say on the expenses is, uh, we tell, I tell my clients, don't pay anything to the birth mother without telling me or pay for any expenses without running it by me to make sure, um, that it's on the approved list or two, more importantly, that it's done the right way. You typically don't just give cash to, to a biological parent and say, this is for all these different things that looks like you're buying a baby, you

67:35know, and that, you know, in my state, not only will that block your adoption from happening, if the judge thinks that you exchanged money for her decision to place for adoption, then you're not going to adopt that child. The judge won't approve it. And number two, it's a crime. You'll go to, you could go to jail if you attempt or do buy a baby through an adoption. And so those are incentives to make sure that you're careful and you coordinate with your attorney or your agency. If you're running through an agency, they manage and

68:06handle all those expenses. If it's a private adoption, make sure that you communicate with your attorney. Now there is broader categories of gifts and things like that, but I see a few hundred dollars under this gifts category, a placement gift, totally appropriate taking them to lunch or dinner as you're getting to know them is totally appropriate. Keep track of it all though, because almost every state that you do an adoption in, when you go finalize that adoption with the judge, you have to sign an affidavit or a declaration

68:37that declares and outlines all of the costs that you've paid for on behalf of the birth mother or what you've paid related to the adoption. And the judge looks at those and scrutinizes those to make sure that, that it's appropriate. And there wasn't anything done under the table or off-handed to try to induce the mother to place the baby with you. Very good. Great answer. Yeah, I don't think I need to, I can't add anything to that. I'm

69:07just thinking of all personal experiences and- Yeah, I wish we could talk. I mean, I feel like I pick up all the time today. No, no, no, no, no, it's good. I'd like to share stories with you, but I want, I'm trying to throw out as many of this important- That's good. And maybe we'll do a follow-up that kind of maybe builds on some other thoughts. I do want to end though with- If any of the listeners have questions we didn't cover today, have them contact you and we'll definitely do a Q&A follow-up or something. That'd be fun.

69:37For sure. For sure. Let's maybe end with this thought, because I think it's a really important one and you had mentioned this in preparation. When you're looking at an attorney or a lawyer that's going to represent you, make sure that they're an adoption attorney, not just the friend that wants to do you a favor that's a lawyer. Can you speak to that a little bit and why it's really important to make sure you have someone that is very familiar with

70:07adoption? Yeah. So, you know, if it's a simple finalization, like from an agency or something where they just have to file a petition and then file paperwork and go to court at the end, then a family law attorney, most family law attorneys do those just fine. They're simple. They're not legally complicated. All the work's been done by the agency. The lawyers just handed the paperwork. So, where I emphasize the importance of really screening and maybe interviewing

70:41your adoption lawyer is if you're going to go into a private adoption or you're going to do a family adoption, which family, stepparent, private, those adoptions are generally all private adoptions if it's not involving an agency. And we haven't spoken today at all about foster care adoptions and state adoptions. Those are considered agency adoptions because the state, in our state DCFS or whatever the foster agency is in your state, they're a licensed adoption agency as well. So, that category fits under agencies. But private

71:16adoptions, there are just so many loose ends and risks that if they're not done appropriately can cause major complications or later contested adoptions or contested during the adoptions. And you, so you really want to ask the questions, how many private adoptions have you done? How do you set up your teams or how do you take care of the birth mother separate from the couple? Do you have experience doing that? Because a lot of times a couple hires a lawyer,

71:53they have an attorney client relationship. The lawyer says, well, my job is to represent this client and get them, you know, be their advocate. That's what they're used to doing in divorces or in commercial litigation or civil litigation or whatever. You're an advocate for your client. In adoptions, you do owe that duty and a lawyer does owe that duty to their client. But they have a, I feel like a greater ethical duty if you're going to practice adoption law, particularly in private adoptions and ethical duty to make sure that

72:26everyone is protected and taken care of by someone in the process. And so those would be the questions I would ask if you're going to go through in a private adoption is what experience, have you done interstate adoptions? Do you know how to do the ICPC process? Do you know how to work with those in other states and coordinate between different state laws? And do you know what ICWA means? The Indian Child Welfare Act. What if this is, we haven't

72:56talked about that, but that's a big legal issue. If the child being adopted could potentially be an Indian child or do they know what to do or have resources to consult to address those legal issues that can be very complicating. So that's why I say if it's a private adoption, really like I tell my clients, you don't have to hire me, but please hire somebody. I'll give you names. I'll give you five names. Go hire one of them, but just hire somebody

73:27that knows what they're doing and knows how to do these complicated adoptions when there's not an agency involved because it can really mean the difference in hiring one of us later to fix what somebody else didn't do right the first time. That can be much more expensive. Yeah. I think earlier you've made this statement where I could give you the legal answer in

73:58about 10 seconds and then I'll go on for five minutes about the ethics or about experiences to just to make it a really good experience for both sides. And those that aren't as familiar with adoption law probably don't know the nuance of all of the, you know, the letter of the law is one thing, but understanding the culture around adoptions and really like

74:28I love how you create a team to support expectant parents and make sure that everybody is represented in a really good way. So let me interrupt. Let me just add one other thing since your audience is all over the country. I'll put a little plug in there. There's an organization that's called the Academy of Adoption and Assisted Reproduction Attorneys, AAAA, and the website address is adoptionart.org. That's a national network of fellows of adoption

75:03attorneys who happen to also do surrogacy. Some of them, there's this assisted reproduction component, and there are lawyers that specialize in surrogacy law as well. But we're all part of this national organization. It's difficult to get into and to be admitted. There are only four, three or four in the state of Utah lawyers that are a part of this. And the reason that it's relevant and helpful is that you have to demonstrate to the organization that

75:36you've done X number of interstate adoptions, X number of private adoptions, this many of this type and that sort of thing. And so you have to demonstrate a level of experience. But that website anyone can go to and you can click on your state and it will show you all of the adoption attorneys that are a member of Quad A in that state. And you can trust that if they're a member of that organization that they're experienced and can handle your private adoption. And that would be a place I would recommend people start if they're

76:10in another state and need to know how do I find a trusted attorney. That's one place you could go look where it would save you from having to ask a million questions to 10 different lawyers to try to figure out who's the experienced one. And so hopefully that's helpful to your that. Yeah, that that is super helpful. And we'll make sure we put a link to that in our show notes. Excellent. Derek, thank you so much for your time. You've shared so many good things. I know we're just scratching the surface on a lot of issues.

76:42But is there any maybe parting word that you'd share or advice for the adoption community from your experience? What would you leave with us as as we I would just say the legal components of adoption can be scary and intimidating sometimes. And I talk about risks and I talk about contested adoptions and challenges and and and birth father laws and all those sorts of things. But the it still doesn't change the fact that as a whole the adoption process

77:12is beautiful. It's wonderful. It's a great experience. You should not shy away from adoption because you're worried about the legal components. Just hire a trusted professional social workers, lawyers to be on your team and help you through it. And if you do that, it's going to be a great experience. And doesn't mean it's not going to be hard sometimes doesn't even mean it may not fail at time or two. But adoption is a wonderful process and a wonderful way

77:45to build a family. I'm a big advocate for it. And I'll just say I'm always open. If I can be of help to anyone. You know, I won't give myself one out over the podcast, but I'm not hard to find. And you can email me anytime. And I'm one of the easiest lawyers to just ask a question to because I just don't want people out there stressing and avoiding because they don't understand or don't know or don't know how to do something. Let's get

78:16you going in the right direction with the right people that can help you through it. And it's going to be a great, great way to build a family. I wish you all the best of luck and the best experiences. Awesome. Thank you. And thank you so much for being on the podcast with us. We really appreciate it. Yeah. Thank you so much for listening to this episode. We loved hearing from Derek. I think one of

78:50the key takeaways for me is that it's really important to create a team around supporting not only adoptive couples, but really the expectant parents as well. And I really like how he emphasized that. I think that the burden should fall on the professionals, but definitely on the, on the shoulders of adoptive parents as well to make sure that expected parents have as much support as they can get. I agree. I really liked that. I loved his emphasis

79:20on empowering expectant parents. He talked about the importance of biological parents having proper representation so that they can feel safe sharing what they're needing, what they're feeling. And I loved his focus on forming strong relationships with each other when we're waiting for this baby to be born. Right. And if an adoption situation doesn't work out the way we might hope as hopeful adoptive parents, we can still feel so much happiness and joy that this family is being kept together. If an expectant parent

79:54decides to parent because we have this relationship with them and this love for them. So I loved that discussion as well. Thank you for listening to this episode. We hope that it was informative to you as well. And thank you so much to Derek. We really appreciate you helping us with teaching the adoption community. Next week, we'll be back with another interview episode and we're excited for that. We'll talk to you then. Thanks.

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