This question comes up a lot in domestic adoption. And, in fact, misconceptions about this issue often lead couples to adopt internationally. And, rightfully so – I mean, who would want to have cared for and bonded with a child for years only to have the birth mother change her mind 5 years down the road and get “her” child back. Yikes! Who wants that kind of emotional stress? Better to play it safe and go international.
Well, I hope this article can provide a little clarification, so that if you do adopt internationally, it won’t be out of unfounded fear. Also, I hope this will encourage some families to invest in caring for the fatherless right in our own cities.
So, right off the bat let me say this: IT DOESN’T HAPPEN! Unless you kidnapped the child from the birth mother, there is no legal way that she can come back years later and take your child away.
So, here is the straight scoop. There are five time periods you need to keep in mind. The birth mother has different rights at each of these stages. The starting point for all of these time periods is the day the birth mother gives consent, or the day of birth, whichever happens later.
The first time period is from zero to five days. From zero to five days the birth mother can change her mind for any reason. That means that if it has been three days after the birth mother gave consent and she wakes up in the middle of the night in a cold sweat and wants her child back, she can do that. Many agencies wait until after this five day period to give the child to the adoptive family. Agencies accomplish this by having a network of loving foster families available to care for the child during this five day period.
The second time period is from six to fourteen days. During this time period, it is possible for the birth mother to get the child back, but there is a pretty high hurdle that the birth mother has to overcome. The birth mother has an uphill climb to show that it is (1) reasonable and (2) in the child’s best interest for the child to be removed from the adoptive family’s home. During a best-interest determination, the court may call on the birth mother to prove that she can provide an environment for the child that is more loving, stable, and caring than the adoptive family can.
The third time period is from fifteen days until the adoption is finalized. If the birth mother changes her mind during this time period and wants “her” child back, she must prove that her consent was obtained by fraud, duress, mistake, or undue influence. Bizarre examples of this would include someone holding a gun to the mother’s head and telling her to sign the papers or die. A less extreme example would be of an adoptive family promising to send the birth mother to college if she consented to the adoption; or the birth mother claiming she thought she was signing a medical release form instead of a consent to an adoption.
With God’s grace and good planning these issues should never be a question. The birth mother should be fully informed and competently counseled about the implications of her decision. In addition, the adoptive family should be given guidance on where the legal boundaries are and how not to cross them. For example, it is usually a safe-harbor practice to send the birth mother small “token” gifts to show appreciation for her decision. On the other hand, an adoptive family should steer clear of any monetarily sizeable gifts that could be construed as an inducement for the birth mother to “sell” her baby. Whatever the scenario, a good guiding principle is to plan in such a way so as to “avoid the appearance of evil.”
The fourth time period is from the finalization of the adoption to one year. Alabama law is actually silent on this period, but Professor of Law, Shirley Howell, expresses the opinion that the birth mother must still prove fraud, duress, mistake, or undue influence to get the child back up to one year after the consent is granted. To my knowledge, an adoption has never even been contested during this time in Alabama; and there is no record of any case law speaking to it ever being raised. But, the law must plan for the worst.
The fifth time period is after one year from the finalization of the adoption. In order for a birth mother to get the child back any time after one year of the adoption, she must prove that the child was kidnapped. Here again, I know of no time that such a challenge has been made in Alabama; neither is there case law addressing the issue.
The following chart summarizes the important time periods and what the birth mother must prove to revoke her consent and get the child back:
SUMMARY OF ALABAMA ADOPTION LAW
|Can birth mother get child back?
|Birth mother can get the child back for any reason.
|Birth mother must prove (1) that it is reasonable for her to get the child back and (2) that it is in the child’s best interest.
|15 days – final decree
|Birth mother must prove that fraud, duress, mistake or undue influence was used in gaining her consent to the adoption.
|Birth mother must prove kidnapping.
So, the scariest part of domestic adoption for the adoptive families is the 1 – 5 day time period where the birth mother can change her mind for any reason. From 6 -14 days the birth could hypothetically get the child back, but she has a high hurdle to climb by proving that it would be in the child’s best interest. After 14 days, it is virtually impossible for the birth-mother to get the child back; and many people in the adoption world only think about a birth mother’s ability to revoke consent as existing within the 14 day period.
Thankfully, with God’s grace and good planning, the emotional risk to the adoptive family can be almost entirely alleviated.
 Thanks to Professor of Law, Shirley Howell for helping to interpret the, somewhat, ambiguous Alabama Adoption Code.
 See Montgomery, County, Alabama Probate Court publication: http://www.mc-ala.org/ElectedOfficials/ProbateJudge/ProbateDivisions/ProbateCourt/Pages/Adoptions.aspx; Infant Adoption Training Initiative: http://iaatp.com/docs/Alabama-FrequentlyAskedQuestionsOct08.pdf. But see, OLR Research Report: http://www.cga.ct.gov/2004/rpt/2004-R-0661.htm See Montgomery, County, Alabama Probate Court publication: http://www.mc-ala.org/ElectedOfficials/ProbateJudge/ProbateDivisions/ProbateCourt/Pages/Adoptions.aspx; Infant Adoption Training Initiative: http://iaatp.com/docs/Alabama-FrequentlyAskedQuestionsOct08.pdf. But see, OLR Research Report: http://www.cga.ct.gov/2004/rpt/2004-R-0661.htm