Delaware Lawyers Weigh in on Complex Adoption Laws

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While adoption is considered the best option in many situations, the complex process can quickly become a tough legal and emotional battle.

Many who supported overturning Roe v. Wade touted adoption as an alternative to abortion. How the latest U.S. Supreme Court ruling will affect adoption in Delaware remains to be seen, but local attorneys caution it’s a difficult process. Here, they weigh in on adoption laws in the First State and how aspiring parents can prepare.

Adoption—long the best hope for many people seeking to start or expand their families—has received heightened attention in the months since the United States Supreme Court reversed Roe v. Wade. The court’s decision has raised speculation that women unable to legally terminate their pregnancies will turn to adoption. It’s an alternative that those who oppose abortion rights touted for years prior to this summer’s landmark ruling. (Abortion remains legal in Delaware, as the state legislature codified those protections into law here.)

As the battle over abortion rages at the national level and in states outside of Delaware, it is too soon to know whether the number of children available for adoption will increase, or by how much. Regardless, experts caution that adoption, whether of an infant or an older child, will continue to be a complicated and stressful process. Having the right legal representation can make all the difference. From ensuring that paperwork is correctly filed to advising all parties on the details of parental rights surrender to helping hopeful individuals figure out if they are qualified to adopt under the law, attorneys guide their clients through a situation that is at once legal, emotional and extremely personal.

“It’s very scary because the state can take the child away for any reason or no reason.”
-Thomas Shellenberger, Delaware family law attorney & adoptive parent

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A lawyer’s ultimate goal is to show prospective parents “how to limit your legal risk, your financial risk and your emotional risk, and help to bring permanency to the child,” explains Deborah Spivack, a leading adoption attorney with offices in Delaware, Pennsylvania and New Jersey.

In Delaware, individuals who wish to adopt a child they are not related to have two options: go through the foster care system or work with an agency that deals with birth parents to match children with new homes, often before the baby is born. In some states, birth and adoptive parents can connect directly with the help of an attorney. These arrangements, known as “independent” adoptions, are not allowed in Delaware. That prohibition is just one example of how adoption laws differ from state to state.

Another example: rules regarding birth parents’ voluntary surrender of their parental rights. In Delaware, a birth mother must wait until the child is born to surrender her parental rights, but she can do so immediately after giving birth. Birth fathers in Delaware can relinquish their parental rights at any time. Many other states, including Pennsylvania and New Jersey, require birth mothers to wait at least 72 hours after delivery to sign away their parental rights.

Termination of parental rights for a newborn can be relatively straightforward when both birth parents agree. “What happens often is there is one birth parent who is not signing the paperwork,” Spivack says. “An attorney can move it forward by pursuing grounds for nonvoluntary termination of rights.” Typically, the birth mother has contacted an adoption agency to begin the process and the father isn’t cooperating.

While getting that paperwork signed is a major milestone, those signatures don’t mean adoptive parents can exhale quite yet. In Delaware, a birth mother has 14 days to change her mind. Again, the window of time to revoke surrender ranges widely between states.

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The process can be considerably more complex when it involves a child in foster care and parents who are having their parental rights involuntarily terminated. Delaware law allows both individuals and couples to adopt, regardless of sexual orientation or marital status, as long as they are at least 21 years old. Foster parents who want to make the child they’ve been caring for a permanent member of their family can file a petition for adoption. The effort involves an investigation by a state-licensed child-placement agency to determine both if there are grounds for terminating the birth parents’ rights and the suitability of the would-be parents. It can be a lengthy endeavor, with no guarantee that the petitioner will, in the end, be able to adopt the child.

Delaware family law attorney Thomas Shellenberger has represented many clients hoping to adopt, and he and his wife have adopted two children out of the foster care system. He knows firsthand how it feels to be in that liminal state between starting the legal procedure to adopt and becoming the child’s permanent parents.

“It’s very scary because the state can take the child away for any reason or no reason,” Shellenberger says. Years later, he vividly remembers a time when his then-foster daughter fell and bruised her face. “I’m thinking, ‘They’re going to take our daughter away.’ Fortunately, they were more understanding that that. But it was terrifying.”

This mix of professional and personal experience helps Shellenberger empathize with and guide clients navigating the system for the first time. This includes having a candid talk with clients to discover whether they have anything in their past or present that would hurt their ability to adopt.

“I’m not judging them in terms of, ‘Do I feel comfortable with them adopting?’” Shellenberger says. “I ask questions because I want to know what the pitfalls are going to be and tell them what we are going to have to overcome.”

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If an aspiring parent has something in their past that would legally disqualify them from adopting, an attorney can save them the expense and disappointment of beginning the process. Delaware law prohibits adoption by anyone who has ever been convicted of a felony involving child or spousal abuse, or serious violent crimes against anyone. But some crimes, including drug-related offenses committed more than five years ago, might not end an individual’s hopes of adopting.

When it comes to choosing an attorney, experts say clients should look for someone experienced in family law—and well-versed in the details of their state’s adoption laws. But there’s something less tangible to consider, given the high emotional stakes.

“Your personalities have to mesh,” Shellenberger says. “It’s like choosing a family doctor. It’s not where they went to school—it’s who do you feel comfortable with?”

Related: Delaware Is Becoming a Safe Haven for Reproductive Rights

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