Skylark Law & Mediation, PC

In Massachusetts, private adoption between individuals is not permitted, without the involvement of either the Department of Children and Families (DCF) or an adoption agency. DCF is the state agency in charge of protecting children from bad circumstances such as abuse and neglect. A child’s birth parents may voluntarily sign away their parental rights with regards to a child, or DCF may petition the court to terminate the parents’ rights to voluntarily consent to an adoption. 

In Massachusetts under G.L. c. 210, § 1, any person who is eighteen years old can adopt another person who is younger than him or her, unless the person to be adopted is the spouse, brother, sister, uncle, or aunt of the person seeking to adopt.

An interesting note: before same sex marriage was legal, often times one party is a same sex couple would adopt the other in order to take advantage of having a legal connection to each other and having some legal rights. Check out this article about a gay couple who went through the adoption process in the 1970s. Now they are unable to legally marry because their legal status is that of father and son.

In order to adopt a child under fourteen years old in Massachusetts, you must meet one of the following requirements:

• the child was placed with you by DCF or another agency for the purpose of starting the adoption process;
• DCF or an agency has approved the adoption in writing;
• you are related to the child by blood;
• you are a step-parent of the child;
• you were named in a will as guardian or adoptive parent by the child’s deceased parent(s); or
• you are part of an unmarried couple, either same-sex or opposite sex, one of whom is already the legal parent of the child through adoption or birth, as the biological parent.

Any single person can adopt, but if a married couple wants to adopt, both of the spouses names must be included on the adoption petition. 

All adoption paperwork must be filed with the Probate and Family court in the county in which the adoptive parents reside. A judge must review and approve the adoption in order for it to be complete. 

There are two ways the process of adoption usually begins. First, an adoption agency or DCF will approve a potential adoptive family for adoption. DCF will then place the child with the family and do a home study, which means that the agency will keep tabs on how the child is doing in the new home. The second way an adoption can begin is without the initial intent to adopt. In these cases a person who is acting as the caretaker for a child, such as a guardian or foster parent, later decides to adopt the child. In this case the person wishing to adopt can file a petition with the court. 

In most cases, when a child is under the age of twelve, the lawful parents or surviving parents of the child must give consent for the child’s adoptions. The written consent is called a “surrender” and needs to be in a specific form, signed before a notary and two witnesses. In cases of adoption of a newborn baby, there is a four day waiting period before the lawful parents can sign a surrender form (Anyone signing a surrender of parental rights to a child should consult a lawyer to make sure he or she understands the gravity of the meaning of signing the surrender form.)

If for some reason consent is not available, the court may issue a citation. This may lead to the adoption being a contested adoption, which means that the then legal parents do not agree and the court has to decide if their parental rights should be terminated.

Things can get a little complicated when it comes to children born out of wedlock. If the father has not signed a consent, you need to find out if the father has signed a document asserting his rights as the father or a declaration of fatherhood. G.L. c.210 s. 4A allows a person who thinks he is the father of a child born out of wedlock to file a claim with DCF to accept parental/paternal responsibility for the child if mom does not want to or cannot take care of the child. Once the father files this claim, it is considered an admission of paternity.

DCF may check to see if anyone has filed such a voluntary declaration of paternity. If DCF finds that someone has indeed filed such a claim, DCF will notify that person, informing him that an adoption process has been started or is pending for the child. If he does nothing before the end of 30 days, the father is not entitled to any further notice concerning the adoption.

In any adoption scenario, the court will either get the consent of the birth father, determine his consent is not needed, or give him notice of the adoption. The mother to a child born out of wedlock should sign a statement identifying whom she believes to be the father and his current or last known address. In cases where the mother is not sure who the birth father is, notice by publication might be required by the court.

After notice is given and/or birth parents are identified, they may object to the adoption. In this case, adoption is contested, and the court will become further involved to determine what is in the best interest of the child as far as the adoption. This might include a trial in which the court determines the fitness of the birth parents and the best interest of the child.

In most adoptions, DCF or the adoption agency will require an investigation into the home life of the child. In some circumstances such as same sex, step parent, or co parent adoption, this home study may be waived by the court. DCF is an authorized agency to conduct the home study, or a private agency might also be used, but keep in mind that the fees to do so might vary. 

There is no filing fee for adoptions.

After the court grants the adoption, the petitioner(s) become the legal parent(s) of the child. Adoptions are considered the happiest moments to take place in the Probate and Family Courts, bringing families together in a place where so many other families experience conflict.