It is Time for Kentucky to Open Up to Open Adoptions

Blog Post | 112 KY. L. J. ONLINE | March 12, 2024

It is Time for Kentucky to Open Up to Open Adoptions

By: Emily Prince, Staff Editor, Vol. 112 

It is Time for Kentucky to Open Up to Open Adoptions

Far removed from the days of Moses and the reeds,[1] most adoptions today are open adoptions.[2] The particularities of open adoption agreements vary according to their individual terms but frequently include post-adoption visitation between the birth parent(s) and child.[3]  Because Kentucky law is silent regarding the enforceability of open adoption agreements, these agreements are in effect unenforceable.[4]  It is time for Kentucky’s laws to reflect what is known and practiced by other states[5] — that closed adoption no longer fulfills its intended purposes, and open adoption agreements often serve the best interests of the child, adoptive parents, and birth parents.

In the past when adoptions were viewed as a disgrace and veiled in secrecy, closed adoptions were necessary.[6]  Then, legalization of contraception and abortions caused a shortage of babies available for adoption.[7]  The perception of birth parents shifted from Hester Prynne[8]-like humiliation to one of selfless heroism.[9]  Birth parents were now in a position to negotiate their adoptions.[10]  Open adoption became an attractive option for those expectant parents who wished to maintain contact with their child but who lacked the resources to nurture the child.[11]

And as it turned out, open adoption benefited all involved.  Adoptive parents were more likely to find a child to adopt while birth parents were able to maintain a relationship with their child.[12]  Most importantly, the child fared better.[13]  Adopted youth in open adoptions generally have better psychological outcomes,[14] including “fewer externalizing behaviors, . . . better ratings of psychosocial adjustment,”[15] higher self-esteem,[16] and a stronger identity.[17]  The best outcomes were found in children who were placed voluntarily as infants in open adoptions.[18]

Unfortunately, a birth parent cannot rely on Kentucky courts to enforce an open adoption agreement and the adoptive parent remains free to close off communication despite having received an irrevocable adoption.[19]  This doesn’t have to be the case.  Open adoption agreements can be recognized as contracts that would fit within Kentucky’s existing legal framework.

Open adoption agreements have all the required elements of a contract.  In a quid pro quo arrangement, birth parents exchange their parental rights for a promise that the adoptive parents will allow the birth parent some form of continued access to the child. Consideration from the birth parent exists when they have the option to relinquish their parental rights and therefore relinquishment was voluntary.  In other words, involuntary termination must not have been inevitable, as is often the case in abuse or neglect proceedings.[20]  While some birth parents may still have terminated their rights without a promise by the adoptive parents to continue contact, there is evidence that the promise of openness makes birth parents less hesitant to relinquish their rights.[21]

Legal recognition of familial contracts is not a new concept in Kentucky.  Marriage, parenthood via artificial reproductive technology, foster care, and even adoption itself are all examples of enforceable familial contracts entrenched in Kentucky’s legal structure.[22]  To not recognize the contract but nevertheless enforce the contracted-for adoption would be equivalent to unjust enrichment for the adoptive parent who reaps the benefits of adoption without fulfilling the basis for which the birth parent relied on when agreeing to the adoption.  The birth parent cannot get the child back when the adoptive parent breaches by severing communication.[23]  The birth parent is without recourse and loses their child in every way.

Neither is recognition of third-party visitation rights a new phenomenon in Kentucky.  KRS 403.320 recognizes third-party visitation rights with people other than legal parents and custodians when the same is determined to be in the best interests of the child.[24]  Kentucky should extend this right to birth parents. 

Of course, the best interests of the child should be at the forefront of the discussion whether looking at the best interests of the child through the lens of contract law or visitation.  Enforcing open adoption agreements solely through contract law fails to appreciate the impact on the child who is not a direct party to the contract.  While there is likely overlap in the birth parents who have consideration to offer (that is, involuntary termination of parental rights was not inevitable) and those whose presence in the child’s life would be overall beneficial,[25] more assurance is needed that the best interest of the child remains the priority.

To consolidate contract law with a best interest of the child approach, Kentucky should look to Utah for guidance.  Utah enforces court-approved open adoption agreements unless they are found to not be in the best interest of the child.[26]  In contrast, Massachusetts supports continued contact on a more restricted regime through equity and court-imposed visitation, taking into account factors such as the child’s bond with their birth family and “other circumstances of the actual personal relationship of the child and the biological parent.”[27]  Massachusetts allows courts to impose visitation with a birth parent if it is determined to be in the child’s best interest, but the court can choose to leave it up to the adoptive parent’s discretion whether and how the child is allowed continuing contact with their birth family.[28]  Utah’s approach is superior for two reasons: it allows the court to review the agreement for fairness before implementation, and it is enforced unless found to be not in the best interests of the child.  This approach provides enough flexibility to be workable but enough consistency for the child to rely on.  Massachusetts’ approach, on the other hand, likely yields unpredictability on which no party can safely rely.

In sum, Kentucky’s legal framework has sufficient room to accommodate binding open adoption contracts, and I invite Kentucky’s legislature to recognize the social evolution of adoption and permit enforcement of open adoption agreements.  Kentucky’s lawmakers should mimic Utah’s approach and permit enforcement of open adoption agreements through contract law while keeping an eye on the child’s best interest.  To promote predictability and reliability, lawmakers should implement court review of post-adoption agreements and enforce court-approved agreements unless determined not to be in the child’s best interest. 

[1] Exodus 2:1–10.

[2] Lisa Burden, Adoption Statistics and Legal Trends, FindLaw, https://www.findlaw.com/family/adoption/adoption-statistics-and-legal-trends.html (July 14, 2023).

[3] Sophie Mashburn, Mediating A Family: The Use of Mediation in the Formation and Enforcement of Post-Adoption Contact Agreements, 2015 J. Disp. Resol. 383, 384, 388 (2015); Carol Sanger, Bargaining for Motherhood: Postadoption Visitation Agreements, 41 Hofstra L. Rev. 309, 315 (2012).

[4] The 5 Kentucky Adoption Laws You Need to Know, AdoptMatch, https://info.adoptmatch.com/5-kentucky-adoption-laws-you-need-to-know (last visited Feb. 25, 2024); 2 C.J.S. Adoption of Persons § 137.

[5] See Open Adoption Agreement Laws by State, AdoptMatch, https://www.adoptmatch.com/open-adoption-rules-post-adoption-agreement-by-state (last visited Feb. 25, 2024) (for a map of states that enforce open adoption agreements).

[6]  Mashburn, supra note 3, at 384–85.    

[7]  Sanger, supra note 3, at 314–15.    

[8] Nathaniel Hawthorne, The Scarlet Letter: A Romance (1850).

[9] See Birth Moms Are Heroes, Colo. Christian Servs., https://christianservices.org/birth-moms-are-heroes/ (last visited Feb. 25, 2024).

[10] Sanger, supra note 3, at 315.    

[11] Id. at 321–22.    

[12] Mashburn, supra note 3, at 385.    

[13] Cynthia R. Mabry, The Psychological and Emotional Ties That Bind Biological and Adoptive Families: Whether Court-Ordered Postadoption Contact Is in an Adopted Child's Best Interest, 42 Cap. U. L. Rev. 285, 294 (2014).

[14] Cynthia R. Mabry, The Psychological and Emotional Ties That Bind Biological and Adoptive Families: Whether Court-Ordered Postadoption Contact Is in an Adopted Child's Best Interest, 42 Cap. U. L. Rev. 285, 294 (2014); Ann Wrixon, Literature Review of the Impact of Open Adoption on the Adoptee, Ann Wrixon (Jan. 15, 2018), https://www.annwrixon.com/post/2018/01/01/2010-literature-review-of-the-impact-of-open-adoption-on-the-adoptee.

[15]  Wrixon, supra note 14.    

[16] Mabry, supra note 13, at 294.    

[17]  Wrixon, supra note 14.    

[18] Id.          

[19] Ky. Rev. Stat. Ann. § 199.520 (West 2003) (“Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent.”); Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997) (“Since adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents.”).

[20] See Sanger, supra note 3, at 323–24.    

[21]  Mashburn, supra note 3, at 385.    

[22] Sanger, supra note 3, at 309–11.    

[23] Id. at 315–16.    

[24] Ky. Rev. Stat. Ann. § 403.320 (West 2021     ).

[25] See Sanger, supra note 3, at 324.      

[26] Utah Code Ann. § 78B-6-146 (West 2013).

[27] In re Adoption of Rico, 905 N.E.2d 552, 559 (Mass. 2009); In re Adoption of Ilona, 944 N.E.2d 115, 124–26 (Mass. 2011).

[28] In re Adoption of Ilona, 944 N.E.2d 115, 124–26 (Mass. 2011).