Author Archives: Melissa Tartaglia

Adoption Expenses: What’s allowed? What’s not?

When adopting a child in Florida, who is not related to you by blood or marriage, there are certain expenses that are permitted by law, and others that aren’t (Florida Statutes section 63.097).  Knowing the difference may save you unnecessary expense and time.

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  1. Living and Medical Expenses

  • Allowable:

If the birth mother is unemployed, underemployed, or disabled, you can pay a reasonable amount for certain living expenses, such as:
            Rent
            Utilities
            Basic phone service
            Food and toiletries
            Necessary clothing
            Transportation
            Insurance
            Other expenses to support the health and well-being of the birth mother
                     and unborn child

You are also allowed to pay reasonable and necessary medical expenses during pregnancy and up to six weeks postpartum.

  • Prohibited:

It is not permissible to pay any of the birth father’s living expenses, nor his medical expenses except, perhaps, DNA or disease testing.  Living and medical expenses, for either parent, incurred after six weeks postpartum are prohibited.

Additionally, any expenses that exceed the statutory $5,000.00 cap are prohibited unless you first obtain the court’s approval.  The court must find extraordinary circumstances exist in order to approve exceeding the cap.

  1. Legal and Other Fees

  • Allowable:

You, are permitted to pay for your own legal representation at a reasonable hourly fee, and if you are using an adoption agency, you are allowed to pay for legal representation for the agency as well.

Though it isn’t clearly provided for in section Florida Statutes, section 63.097(2), I believe it is permissible to pay a reasonable hourly fee for an independent legal consultation for the birth parents. A legal consultation will insure the birth parents’ consents are fully informed and voluntary.1

If the birth parents need counseling to assist them with their decision to place the child for adoption, a reasonable hourly fee for such counseling is allowed.

You are required to have a preliminary home study prior to a child being placed with you for purposes of adoption.  The fees for this preliminary home study, and for the post-placement final adoption home study, are permissible, and even required under F.S. section 63.097(6).

If you are required to serve the parents with the petition to terminate their parental rights2, or if you have to complete a diligent search for a birth parent whose location is unknown, such fees are also allowed.

  • Prohibited:

Any legal and other fees not listed above, or that exceed $5,000.00, are prohibited.  If extraordinary circumstances exist, you may be able to obtain court approval to pay legal and other fees beyond the $5,000.00 cap.

  1. Court Costs

The law allows up to $800.00 in court costs as well. Unfortunately, that cap is unlikely to cover all the court costs normally involved in an adoption.

  • Allowable:

            Clerk’s fees (such as sealing a summons, certification of documents, etc.)
            Filing fees
            Other litigation expenses
            Birth certificates and medical records

Eight hundred dollars doesn’t go very far these days. Filing fees alone are $400. I recommend having birth parent interview recorded by court reporter and transcribed.  This can cost another $300-$400.  Chances are very likely court pre-approval will be needed for additional court costs.

  • Prohibited

The law prohibits payment of court costs exceeding the $800.00 cap or costs not listed in 63.097(2).

  1. Other prohibited expenses

            Payment for locating a child for adoption
            Any non-itemized, undocumented expenses, and any items not listed
                     on the expense affidavit (F.S. section 63.132)

Sorting through these allowable and prohibited adoption expenses can be confusing to laypeople and to attorneys who have little or no experience in private, non-relative adoptions. Your best bet is to with an attorney in your area whose practice focuses mainly on adoption. Doing so will save you lots of time and maybe lots of money. If you are a Florida resident and need more information on adoption, you are encouraged to contact our office at (727) 835-7832.

1 In no way should the adoptive parents agree to pay for ongoing legal representation for the birth parents, and this limitation needs to be expressly stated to the birth parents. If the parents ever contest the termination of their parental rights, and if they are indigent, they are entitled to court-appointed counsel. If they are not indigent, they are free to hire their own legal representation.
2 You are required to serve the petition to terminate parental rights on the birth parents in certain circumstances. If you are unsure whether or not you have to serve the birth parents, consult with an attorney experienced in adoptions.

3 Ways to Save Money on Adoption

The number one reason people choose not to adopt a child is  cost.  If the price tag is holding you back, read on to learn a few ways to significantly trim adoption costs.

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1. Become a foster parent

Not only is becoming a foster parent probably the quickest way to have a child placed in your home, it is also the least expensive way.  Hundreds of Florida foster children become available for adoption every year, and the Florida Department of Children and Families pays the attorney’s fees and costs associated with these adoptions.  In many cases, the department also pays a monthly adoption stipend to offset the cost of raising a child.  In addition, the adopted child receives Medicaid throughout childhood, and also a college tuition waiver for attending a Florida university.

Foster parenting isn’t for everyone.  Some prospective adoptive parents aren’t willing to take the emotional risk of falling in love with a foster child only to see the child reunited with his or her parents.  Others, however, find fostering incredibly rewarding, and many adopt a child with whom they’ve built a significant bond.

If you think foster parenting may be for you, see the Heart Gallery of Pinellas and Pasco to meet some kids seeking loving, adoptive homes.

2. Put the word out.

While Florida law places a cap on attorney’s fees and costs, professional fees, and various expenses for the birth mother, there is no specific cap for adoption agency fees.  Why is this important?  Because, contrary to popular belief, you can adopt without an adoption agency, if you already know a birth mother who wants to place a child for adoption.

A great number of private adoptions happen because a friend of a friend put the birth mother in touch with the prospective adoptive parents. Be proactive and let everyone you are comfortable with know you are actively seeking a child to adopt.  Rely on the word-of-mouth of your friends, family, acquaintances and colleagues.

If you adopt a child without an adoption agency, you will still incur the cost of the home studies, legal expenses, and birth mother expenses, but you will avoid unnecessary adoption agency fees.  And, please, make sure the attorney you hire is experienced in adoptions.

3. Adopt a Florida child.

The cost of hiring two attorneys – one here in Florida, and the other in the state where the birth mother resides – makes adopting a child from another state much more expensive. The attorney and/or agency fees involved in applying for placement in Florida of a child born out of state – through the Interstate Compact on the Placement of Children – also increases expenses. It goes without saying that travel expenses can make adopting a child from another state or another country significantly more expensive.

For more information on how to save money on adoption, contact Adoption Law Source, P.A., at (727) 835-7832, and ask for attorney Melissa A. Tartaglia.

 

Are you raising a relative’s child?

We all know someone who is raising a grandchild or niece or nephew because the child’s parents are unable or unwilling to parent the child. Though such relatives provide needed stability in the child’s otherwise precarious life, the relative is helpless when the parent suddenly decides to take the child back. Unless the relative has obtained a court order awarding temporary relative custody, there’s nothing s/he can do. The parent, even after years of absence, has the right to custody.Photo credit - Anissa Thompson

A power of attorney signed by a parent is better than nothing at all, but it can be revoked by the parent at any time. Some parents refuse to sign a power of attorney. They use their children as leverage to force relatives to give them money or provide 24-hour on-call babysitting services. While such extortion is reprehensible, relatives feel they have no choice but to comply with the parents’ demands when the child’s well-being is at risk.

Depending upon the circumstances, a concerned relative may be able to obtain temporary or concurrent custody to insure stability for a child. With temporary custody, the parent cannot take the child back without first obtaining the court’s permission. With concurrent custody, both the parent and the relative share custody. Neither can prevent the other from exercising custody of the child.

Any relative considering caring for or raising a grandchild, niece, nephew or sibling, for any amount of time should seek the advice of an attorney well-versed in all of the options. There is a window of opportunity to act, and it’s best to know what the options are before the window closes. Contact the office of Melissa A. Tartaglia, Esq., at (727) 835-7832 to arrange a consultation.

If you believe a child is at risk of abuse, abandonment or neglect, call 1-800-96-ABUSE to make an anonymous report.

Photo credit – Anissa Thompson

Myth: You Need an Adoption Agency

Did you know that an adoption agency is not required in Florida adoptions? Whether you are planning to adopt a non-related child, a related child (grandchild, niece, sibling, etc.), a stepchild, or an adult, you can do so through an adoption attorney rather than an adoption agency. Using an experienced adoption attorney may save you thousands of dollars.Photo credit - Hami Gamal

Many prospective adoptive parents go to an adoption agency because they believe that’s where the only available children are. But the truth is that a large percentage of Florida adoptions are done through adoption attorneys.

An experienced adoption attorney can handle most of the same services an agency handles. The difference is that adoption agencies are permitted to charge their clients fees that the adoption attorneys cannot. Those fees can amount to thousands of dollars.

Prospective adoptive parents should diligently interview adoption attorneys to verify the attorney has significant experience in the type of adoption sought. Ask a lot of questions at the consultation phase and don’t be afraid to shop around for the proper amount of experience, the right level of compatibility, and the right price.

Photo credit – Hami Gamal

Got Home Study?

In Florida, prospective adoptive parents need a favorable preliminary home study before a child can be placed in their home.1 If you are considering adoption, you shouldn’t delay getting a home study. It’s not unheard of for a child to become available for adoption at the last minute, and you don’t want to miss the opportunity for that child to be placed with you.

The average cost of a home study ranges from a thousand to two thousand dollars, give or take.2 Because your preliminary home study is valid for one year, there’s a chance your home study will expire before a child becomes available. That means you’ll have to have another home study completed. But consider that the cost of a home study breaks down to about $5 or $6 a day. That’s a small premium to insure you won’t miss a sudden opportunity for a child.

1 A home study is not required in private stepparent or relative adoptions.
2 The cost may or may not also include the final adoption home study that must be conducted after the child is placed with you.

How-To Book on Adoption and Surrogacy

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Considering handling your own Florida adoption without an agency or attorney? Thinking about a Florida gestational surrogacy, either as an intended parent or surrogate? The how-to book, Adoption and Surrogacy in Florida: The Legal and Practical Sourcebook for Laypersons and Lawyers, will guide you through the laws and procedures and potentially save you thousands of dollars. Comes with an invaluable CD-ROM containing all the forms in the book.

*Edit (04/16/2015) There have been significant changes in adoption and surrogacy law in Florida since the publication of this book, and the book is no longer available.

Adoptive Parents’ Fear of Adoption Reversal is Unwarranted.

As with politics, religion and movie stars, news and entertainment shows exploit conflict. Overturned adoptions are no exception. As a result, otherwise prospective adoptive parents shy away from adoption believing that any parent-child relationship formed would be precarious at best. Despite what the media would have you believe, a family built via adoption should be as solid and permanent as any. Overturned adoptions are the exception to the rule. The question remains: How long after the adoption is finalized is it no longer subject to reversal?

If the challenge is based on fraud or duress, it must be filed no later than one year from the date of the final judgment of termination of parental rights. If the challenge is based on a procedural defect or irregularity in the consent that was discoverable by the time an appeal must be filed, the challenge must be in the form of an appeal and filed no later than one month from the date of the final judgment of termination of parental rights.

The term “fraud” contemplates two elements: 1) an intentional misrepresentation of a material fact by the person seeking the parent’s consent, and 2) the parent’s signing of the consent in reliance on that misrepresentation. If the misrepresentation did not entail a material fact, or if the person signing the consent would have signed it despite the misrepresentation, there’s no fraud.

The term “duress” means that an opposing party has imposed improper pressure on a parent to sign a consent to adoption. The pressure contemplated is not necessarily the equivalent of having a gun held to one’s held, but is more forceful than a threat made by a third party such as the parent’s attorney or mother.

In either case — fraud or duress — the challenge to vacate the judgment must be filed within one year of the date the judgment of termination of parental rights (not the judgment of adoption) was entered.

A procedural defect refers to the lack of adherence to the rules of procedure during the termination of parental rights proceeding. An irregularity in the consent could mean anything from improper execution of the consent to inadequate or incorrect verbiage within the consent. In either of these scenarios, the challenge must be in the form of an appeal of the final judgment of termination of parental rights, which must be made within thirty days of the date of that judgment. See F.S. 63.142(4) and F.S. 63.182.

The challenge is not made to the judgment of adoption, but to the judgment of termination of parental rights. Only if the judgment of termination of parental rights is overturned or vacated, will the judgment of adoption be nullified.

Adopting an Out-of-State Child Can Increase Adoption Expenses.

Adopting a child outside of the state in which you live, assuming the child is not a relative or stepchild, will likely be more expensive than adopting a child residing within your state. The main reason for the extra expense is the Interstate Compact on the Placement of Children (“ICPC”), a uniform law which has been adopted by all 50 states, the District of Colombia and the U.S. Virgin Islands.

Though the law doesn’t come right out and say it in plain terms, its purpose is to insure that the “receiving” state is aware of children coming into the state who may or may not end up requiring state assistance.

Photo credit - Joplin Hendrix da Silva Cruz

Adoption of a child from another state naturally involves two states: the state in which the child resides (sending state) and the state in which the adoptive parent resides (receiving state). Each state has its own ICPC office and each state regulates ICPC procedure differently. (In Florida, ICPC is regulated and enforced by the Department of Children and Families. See F.S. section 409.401 et seq.) Because two ICPC offices are involved in an out-of-state adoption, confusion and duplication of efforts can often result.

Each ICPC office requires the adoption information be packaged in a particular way, to include completion of forms unique to that state. In addition to distinct ICPC procedures and forms, each state’s laws and procedures covering termination of parental rights and adoption are unique as well. For example, the formalities of signing, and content of, a consent for adoption vary from state to state. Some states will allow the termination of parental rights to be completed in the child’s state and the adoption to be completed in the adoptive parent’s state. Some, such as Florida, require that both proceedings be completed in the child’s state.

So, if you intend to adopt an out-of-state child who is not related to you or is not your stepchild, you will need an adoption agency or an adoption attorney who is familiar with and experienced in out-of-state adoptions. Be prepared to pay extra for the tedium of dealing with two ICPC agencies. If you go with someone inexperienced for the sake of saving money, you may end up with a mess on your hands and having to start over, which will increase your expenses, or worse, result in a failed adoption.

So, how can you know for sure if ICPC will apply in your case? If the child is the subject of a state action due to abuse, abandonment or neglect (in other words, the state has removed the child from his or her parents), ICPC will apply whether or not the child is a relative or a stepchild. Also, if the out-of-state child will be placed with you in your state for adoption purposes, ICPC applies. Other factors may or may not affect ICPC applicability. The best course of action is to contact an adoption professional, such as an agency or attorney, in your own state who is experienced in out-of-state placements and adoptions. The more experience you have on your side, the smoother and less expensive the procedure will be.

Photo credit – Joplin Hendrix da Silva Cruz

Legal Father Trumps Biological Father, Sometimes.

It’s not uncommon to hear stories of married women who give birth and it turns out the husband is not the baby’s father. Naturally, a question arises of whether the unmarried biological father (“UBF”) has any right to the child. In Florida, a child born during the marriage is presumed to be the husband’s child because the law favors legitimacy.

If the mother is married at the time of the birth, and a court has not already declared another man to be the father, the husband’s name must be entered on the birth certificate. See F.S. 382.013(2)(a). Only one father’s name goes on the birth certificate.

What if the mother lies and says she’s not married? What if she and the UBF execute an affidavit of paternity swearing the UBF is the child’s father? While an affidavit of paternity creates a rebuttable presumption of paternity (see F.S. 742.10(1)) that presumption can be overcome by proof or by a preemptive law. Since a married mother and a UBF are precluded from filing an affidavit of paternity with the Office of Vital Statistics, the fraudulent affidavit of paternity amounts to a nullity.

In terms of adoption, if the mother is married at the time of the child’s conception or birth, the court (or the adoption entity) cannot make any further inquiry of the father’s identity. In other words, the UBF cannot even be identified, is not given any consideration and is not entitled to notice of the adoption. He cannot force the issue by filing a petition to determine paternity: his petition will be dismissed. The husband’s consent to adoption will be required, but not the UBF’s, in order for the adoption to be granted.

If, on the other hand, the husband permits the UBF’s petition to determine paternity to go forward, the husband’s consent will still be required, but so will the UBF’s, assuming the UBF is determined by a court to be the father before a petition to terminate parental rights is filed, and assuming he has complied with the requirements of F.S. 63.054 and 63.062. If the UBF’s consent is required, the UBF has the power to stop the adoption. (Technically, after determination of paternity, the UBF is no longer a UBF, or unmarried biological father.)

The next logical question is: Between the legal father and the UBF who’s established paternity, whose rights trump? As far as I know, the law does not contemplate two fathers with equal rights to a child. That being the case, I would venture to say the UBF wins because the legal father has allowed the UBF to be declared the father.

In Florida, an unmarried biological father is not a “parent.”

In Florida, a father is an unmarried biological father if he is not married to the mother at the time of the conception or birth of the child; and (a) he has not been adjudicated by a court to be the child’s father before a petition is filed to terminate his parental rights; and (b) he has not signed an affidavit of paternity before a petition is filed to terminate his parental rights. Why is this important? Because in Florida, an unmarried biological father is not considered a “parent,” under Chapter 63 of the Florida Statutes.

Example 1: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes, and a court adjudicates him as the child’s father. A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 2: Father is not married to mother at time of conception or birth of child, but his name is on the child’s birth certificate (which means he signed an affidavit of paternity). A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 3: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes. Before the court enters an order adjudicating him as the father, the adoption entity files a petition to terminate his parental rights. This man does not fit within the definition of “parent.”

A unmarried biological father’s lack of parental status carries several legal ramifications relating to his child. They are as follows:

(a) Adoption. If the birth mother places the child for adoption, his consent to the adoption is not required, unless he jumps through several hoops prior to the time a petition is filed to terminate his parental rights.

If the child is less than 6 months of age when placed for adoption, the unmarried biological father must do the following things before the mother executes a consent for adoption:

i) file a Claim of Paternity with the Florida Office of Vital Statistics (Click here to file a Claim of Paternity);

ii) contribute to the birth mother’s and child’s medical expenses related to pregnancy and birth, if he had knowledge of the pregnancy and if he was not prevented from doing so by the mother of legal custodian of the child; and

iii) if served with a notice of intended adoption plan, executed and filed an affidavit with the court that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay. (Click here for Florida law pertaining to unmarried biological fathers’ responsibilities.)

If the child is 6 months of age or older, the unmarried biological father must: i) have maintained a relationship with the child by visiting with the child at least monthly if not prevented from doing so by the birth mother or the child’s legal custodian; ii) have maintained regular communication with the child, when physically and financially able, and not prevented from doing so by the birth mother or the child’s legal custodian.

If the unmarried biological father fails to do the things shown above, according to the child’s age, his consent will not be required for purposes of adoption.

(b) Temporary Custody. Under Chapter 751 of Florida Statutes, an extended family member (such as an aunt, uncle, grandparent, sibling, even stepparent) can petition for temporary custody of a child under certain circumstances. Because an unmarried biological father is not considered a parent, his relatives are not considered extended family members and cannot petition for temporary custody of his child. In fact, the unmarried biological father himself does not have standing to object to temporary custody under this Chapter, and he is not entitled to notice of such proceedings.

(c) Dependency Actions. Under Chapter 39 of Florida Statutes, the State may file a shelter petition to shelter a child from its parents. The State or any person with knowledge that the child has been abused, abandoned or neglected, may file a petition for dependency to have the child adjudicated dependent. While entitled to notice of a dependency action, an unmarried biological father is considered only a “participant,” not a “party,” in any dependency action relating to his child. This means that he is entitled to notice and may address the court; however, he is not entitled to a court-appointed attorney nor can he cross-examine witnesses, obtain discovery documents, etc. If he files a petition to determine his paternity under Chapter 742 of Florida Statutes and is adjudicated the father of the child, then he becomes a party in the dependency action. (Click here for law pertaining to determining parentage.)