Understanding Post-Adoption Contact Agreements (PACAs) in Tennessee
what is open adoption and what is a post-adoption contact agreement?
open adoption
Openness in adoptions has become a hot topic since the advent of the internet and social media. When we talk about "open adoptions," we're referring to honesty about adopting a child and allowing that child to explore relationships with their adoptive parents' family and their birth parents.
Generally, the openness of an adoption lies on a spectrum that can range anywhere from allowing birth parents no contact with the child to allowing regular visits between a child and his or her biological parents. By default, in Tennessee, adoptions are "closed," meaning the adoptive parents have no responsibility to make the child available for contact with birth parents. However, birth and adoptive parents can make agreements that provide biological parents opportunities to have contact with a child after the termination of their parental rights. These agreements are called "post-adoption contact agreements", or PACAs.
post-adoption contact agreements generally
A PACA is a written agreement between adoptive parents and biological parents for the sharing of information about the adopted child. This agreement is typically established to enable open communication and exchange of information between both sets of parents, thus facilitating the child's understanding of their background and maintaining a connection to their biological roots. A PACA usually outlines the frequency and manner of information sharing, including updates on the child's physical and emotional well-being, educational progress, and major events or milestones. Additionally, it may address visitation rights, the exchange of photographs or letters, and any other provisions deemed necessary for the child's best interests. It is designed to promote transparency, honesty, and collaboration between the two sets of parents for the benefit of the child.
what does a post adoption contact agreement involve?
A post-adoption contact agreement is a written agreement between adoptive parents and the birth parents of the adopted child. If the child is fourteen years or older, he or she must also be a party to the contract. A mediation is not necessary, but some parties may wish to participate in one to hammer out the details.
A Tennessee PACA can be as restrictive as the parties agree, but usually sets minimum contact requirements, rather than limits. It should not be used to coerce anyone to give up their rights, but something that all parties agree to freely. That said, a PACA can be a good way to reach an agreement with a birth parent to consent to an adoption, as it will allay some fears that they might lose contact with the child.
After the parties agree on the terms of a PACA, it must be signed by all parties.
Importantly, whether the PACA is violated by one party will not affect the adoption itself. In fact, Tennessee PACAs are required to include two warnings in 14 pt. font:
"After the entry of an order of adoption, an adoption cannot be set aside due to the failure of an adoptive parent, a biological parent, or the child to follow the terms of this contract or a later change to this contract;"
"A disagreement between the parties or litigation brought to enforce or modify this contract shall not affect the validity of the adoption and cannot serve as a basis for orders affecting the custody of the child."
So, even if the parties to a PACA end up in litigation, the underlying adoption cannot be affected.
Finally, as we'll discuss further, PACAs can either be legally enforceable, or be a moral agreement between the parties. If the parties agree to a legally enforceable PACA, the court can get involved if there is ever a disagreement. On the other hand, moral agreements rely strictly on the willingness of the parties to participate.
does a PACA require adoptive parents to allow birth parent visits?
No, PACAs do not require birth parent visits, unless the parties agree to it. But, if all parties don't agree, contact with the adopted child can be limited to phone calls, or even simple written updates and photos. the bottom line is that any continued contact between the adopted child and his or her birth parents is up to the parties to decide prior to signing the agreement.
will a PACA hurt an adopted child?
Many adoptive parents are concerned about the emotional effects that contact with birth parents may have on their child. However, there are myriad benefits to an adopted child knowing their birth families, which may outweigh adoptive parents' desire for privacy.
For instance, some adopted children develop a feeling that something is missing from their lives, especially if they look different than their parents. They want to know why their eyes are blue, or why their hair is a certain color. If they grow up knowing their birth families, they have a support system that can answer these questions for them.
does tennessee law make a PACA enforceable?
tennessee law and PACAs
In Tennessee, there are two types of post adoption contract that are recognized in the statute: legally enforceable, and moral. Legally enforceable PACAs in Tennessee are binding and can be enforced in a court of law. On the other hand, moral PACAs are not enforceable by law, but are based on the moral or ethical commitment of the parties involved. These contracts may also address issues related to visitation and communication, but the parties involved are expected to uphold the terms of the contract out of a sense of moral obligation rather than legal requirement.
moral agreement
A moral post adoption contact agreement is a legal document that allows for ongoing communication and contact between an adopted child and their birth parents or other individuals involved in their adoption. This agreement recognizes the importance of maintaining connections and relationships, even after the adoption has been finalized. It provides a framework for open communication, visitation rights, and sharing of information between the adoptive family and the birth family.
The moral aspect of this agreement emphasizes the ethical responsibility to act in the best interest of the child, promoting their emotional well-being and allowing them to develop a sense of identity and belonging. These agreements can be tailored to meet the specific needs and preferences of all parties involved, ensuring that the child's welfare remains the top priority. By facilitating ongoing contact, a moral post adoption contact agreement supports the idea that love, support, and meaningful connections can exist in multiple relationships, creating a more inclusive and compassionate adoption process. Interestingly, legal and moral PACAs are substantively similar. The critical difference is that PACAs are legally enforceable unless they specify that that are intended to be unenforceable and moral only.
The bottom line is that a moral agreement is not one that is binding under the law; and that means that if one party stops abiding by the agreement, the other party won't be able to get a court order enforcing the agreement.
legal agreement
A legal post adoption contract agreement is similar in form to a moral PACA, except that it is a legally enforceable contract. So, just as moral agreements do, a legal PACA establishes the amount and type of contact that the adoptive family will allow a child's biological family once the adoption is completed. However, if a legal PACA is breached by a party, the other party can sue to have a court enforce the PACA.
Note that all PACAs are legal by default, and unless the parties specify otherwise, they are enforceable. This is either advantageous or disadvantageous depending on your position in the relationship. Generally speaking, adoptive parents prefer moral agreements, as there is less pressure to share information about the child with biological family following the adoption.
On the other hand, biological families typically prefer legal agreements, because they offer some assurance that the parties to the agreement will continue to honor the terms, and if not, the biological parents may petition the court for enforcement.
drafting a PACA
If you plan on setting up a post adoption contact agreement, it is always best to consult with an attorney who knows the ins and outs of adoption law before offering contact terms to a biological parent. You will need to consider how frequently you are willing to discuss your child with his or her biological parents, how comfortable you are passing information about biological parents to your child, and whether you can set aside any feelings or opinions you have about the biological parents to ensure your child has an unbiased opportunity to get to know them.
In some cases, it may also be beneficial to see a psychological professional to work through any potential issues, and to ensure that ongoing contact with biological family will not negatively affect the child.
Adopting a child is a life-changing experience, and it's important to be well-informed about the legal aspects involved. With the guidance of Otten Law, PLLC, you can navigate the complexities of post-adoption contact agreements and ensure that the best interests of all parties involved are protected. You can read more about adoptions (and other stuff) in our Education section.
