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26 Mar 2012

Understanding Hague Adoption Law: Why it is so Important
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We are often called on to consult with prospective adoptive parent(s) about potential foreign adoptions.   In some of these cases, the child is already known to the parent(s). The “known” child may be a relative or “friend of a friend”.

Stricter international adoption laws have been enacted in recent years, in order to prevent child abductions, selling of children and abuse of the system. These laws also prevent adoptions which are sought solely in order to circumvent other immigration laws.

The Hague Convention on International Adoption is now law in many countries. The 'normal' procedure involves potential parents applying to adopt and waiting to be matched with a child, therefore it is much more difficult to adopt a “known” child. There are “exceptions”, but these are often poorly defined and difficult to prove.   Therefore, a couple who wants to adopt a niece or nephew, or a child of a friend may have a difficult (or impossible) goal in mind (depending on the circumstances and the countries involved).

The paragraphs above apply to "Hague Adoptions". In the case of a U.S. parent seeking to adopt from a foreign country that has not ratified the Hague Convention, a different set of laws apply. Still other difficulties can arise.

Each adoption is different, and the facts of the case and the laws of the individual countries must be considered.   There is not one, standardized model to follow, and the laws can be confusing. Under this system, it is possible for a couple to go to a foreign country, adopt a child under the laws of that country, and never be able to legally bring the child to the United States. (this can even happen if one of the adoptive parents is a citizen of the foreign country).

Due to the changes in international adoption law and also in U.S. immigration law, it is not safe to assume that as long as the adoption is done “for the right reasons” everything will be fine.   If the laws are not followed specifically, and the steps done in the proper order, a family can end up in a situation where family unification is difficult or impossible.    Another costly and exhausting scenario involves having to void an improperly obtained adoption and re-do the entire thing, in the proper order and with the proper documentation. There is always the potential for something to go wrong the second time, which would be a heartbreaking situation.

After many years of working with foreign adoptions, if I were asked to give one piece of advice to potential parents it would be this:  PLEASE, get ALL of the facts about ALL of the laws involved and seek a legal consult EARLY with an attorney who is familiar with international adoption law, U.S. immigration law and the family law of your state. Do this BEFORE you fall in love with a child and BEFORE you make plans which affect the future of the entire family.

Kalish Law Office has been representing adoptive families since 1984.
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16 Jan 2012

DNA Testing for Family Law and Immigration Cases - Strict Standards
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DNA testing is sometimes used in paternity, adoption and immigration cases.
Here are some reasons that DNA testing may be used and who may request the test:

1. In a traditional paternity case: As evidence of the identity of the biological father

a. requested by the biological mother in order to enforce the duty of care and child support; or

b. requested by the biological father who wants to enforce his rights to the child and be allowed to be part of the child's life; or

c. by an alleged father who knows or suspects that he is not the true biological father and does not want to have rights to the child or a duty to support him/her; or

d. ordered by a court as evidence in the case.

2. In an adoption:

a. to prove that a child is truly the offspring of one or both biological parents when the biological parent(s) are consenting to an adopiton (especially in international adoption cases).

b. to prove that someone is NOT a parent of the child about to be adopted and therefore does not have to agree to the adoption

c. to comply with international, federal immigration, or state law in an international adoption as part of the evidence in the file and part of procedural requirements

3. In immigration law:

a. to prove that a person is truly the offspring of an alleged parent who is petitioning for them with the immigration service

b. to prove identity of a person by objective, scientific evidence

In both international adoption and immigration cases there are very strict guidelines about which labs may process the tests and how and when the tests should be done. In other family law cases it may be possible to use tests as evidence which were obtained prior to the case being filed (but this is not always true). In order to prevent delays in your case it is always best to seek legal advice and be certain that you are using a lab which is reputable and approved by the governmental agency or court that is involved in your case and that all proper procedures are followed.

Kalish Law Office 281-363-3700 Family and business law since 1984. The Woodlands, Texas.
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24 Oct 2011

Gestational Agreements in Texas
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There is a specific procedure under Texas Family Law for having gestational agreements recognized and validated by a court. The Texas law must be followed, with the proper legal procedures done in the order, so that the intended parents are the full and final legal parents of the child, and the other parties involved do not retain any parental rights and responsibilities relating to the child.

Gestational agreements used to be called “surrogacy agreements”.

“Surrogate mother” = a woman who bears a child for another woman, whether or not the surrogate mother contributes her own eggs.

“Gestational mother”= a woman who bears a child for another woman who does not contribute her own eggs and is not genetically linked to the child.

Texas law says that

-the gestational mother cannot be the genetic mother of the child.

-there have to be two “intended parents” and they have to be married, to each other

- The intended mother must demonstrate to the court through medical evidence that she is unable to give birth to a child, unable to carry a child to term, or unable to give birth without unreasonable health risks to herself or the child

- The gestational mother must have had at least one previous pregnancy and delivery and no unreasonable health risks

- The gestational mother does not have to be married, but if she is, her husband must be a party to the contract

- The child must be conceived through assisted reproduction

- The gestational mother, her husband (if she is married), and the donors (if there are any donors other than the intended parents) must relinquish all parental rights and duties to the child that is conceived

-the agreement must specify who is paying for the health care expenses

-the agreement must be validated in a court at least 14 days before the embryo is implanted in the gestational mother

- Agreements which are not validated by a court will be unenforceable

- The court may order a home study of the intended parents (and likely will do so)

- The intended parents must be “fit” to be intended parents (just as adoptive parents must show their parental fitness)

- The gestational mother and the intended parents exchange health information throughout the gestational period

- The gestational mother has the right to safeguard her health and the health of the embryo and the gestational agreement may not interfere with those rights

-the prospective gestational mother or the intended parents must have resided in Texas for 90 days preceding the date the petition to validate the gestational agreement is filed in a Texas court

It is not recommended that parties enter into “Informal” gestational agreements which do not follow the Texas law. Texas courts will not validate these and there are risks that one or more of the parties may change their mind, that a party who didn’t expect it may be held liable for child support, or that there a conflict may arise about who has the right to custody of the child. The risks of a child being in “legal limbo” or a subject of a multi-party custody battle are simply not worth taking a chance!

A gestational mother can end the agreement before she becomes pregnant.

Not all states recognize gestational agreements, and even among those states which do, there are differences in the law. This is a somewhat controversial area, and definitely one in which we will see further legal development in the years to come.

Kalish Law Office in The Woodlands Texas: Family lawyers since 1984. Gestational agreements, Adoption law, and family law affecting children. 281-363-3700 www.kalishlawtexas.com
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17 Oct 2011

Important Information About Health Insurance and Your Adopted Child
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When you are adopting a child, it is important to enroll your child in your health care plan within 30 days of his/her adoption OR placement for adoption.

This is important for two reasons: 1) if you do so, this will allow coverage for your child under your group health care coverage to be effective immediately as of your child’s adoption or placement date; and 2) this will prevent a “lapse” in insurance that could subject your child to a preexisting condition exclusion for any health issues s/he may have. (Note: In the event that your child has a “lapse” of more than 63 days (a period in which s/he has no insurance coverage, including Medicaid coverage), an insurance company may exclude treatment/coverage for any preexisting conditions for up to 12 months.)

In the excitement and flurry of adoption, this is an issue that may get lost in the shuffle. Don’t let that happen!
As soon as you know that you will be adopting, you should contact your employer’s HR department or plan administrator to review the requirements for enrollment.
Please note: Even if your company only has open enrollment at specific times in the year, you will be entitled to a “special enrollment” based upon the adoption.
Be sure to speak with your adoption attorney as soon as possible about the documentation you will need in order to enroll your child. You may need documentation from the law firm, district clerk, adoption agency, or court in order to present to your insurance company or employer. This is not always immediately available, so be sure to give your adoption attorney a “heads up” so that she can prepare it for you.

More detailed information about preexisting conditions, special enrollment, and other provisions of HIPPA (The Health Insurance Portability and Accountability Act of 1996) can be found on the U.S. Department of Labor website

Kalish Law Office has been serving families and businesses since 1984. Our main website can be found at www.kalishlawtexas.com
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10 Oct 2011

International Adoption: Proving U.S. Citizenship for Adoptees
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When a U.S. citizen couple (or single parent) adopts a child through international adoption procedure it is important to be certain that all steps have been followed so that the child is a U.S. citizen and can prove it, beyond any doubt.   Adoptive parents should not consider the process completed until this happens.

Although the procedures have become more standardized over the years, there are still a variety of laws, rules, treaties, forms, and procedures that come into play.

Due to changes that have occurred in adoption laws over the years, there is not one set “formula” that has been applied to all situations. Whether citizenship is automatic or not, whether there must be a re-adoption in the U.S., and which procedures should be followed depends on the situation.

This month’s Adoption Advocate published by the National Council for Adoption is an article titled: Protecting the Rights of Intercountry Adoptees: Steps to Ensure the Right of Citizenship for Every Adopted Individual. The author of this article is Jean Nelson Erichsen, an experienced adoption advocate and former director of Los Niños International Adoption Center. I was fortunate to be asked to consult with her in the writing of this article.

Ms. Erichsen’s article contains some shocking statistics and troubling case histories of individuals who were adopted by U.S. citizen parents but, for various reasons, have not received U.S. citizenship. Some are entitled to citizenship but lack the documentary evidence to prove it.
In some cases internationally adopted individuals may be able to remedy that situation with the help of an agency, attorney or adoption advocate. However, some of these unfortunate people have “fallen through the cracks” and are the victims of a gap in our laws.

Although immigration reform is a “hot topic” politically, it is hard for me to imagine that even the staunchest supporters of strict immigration policy would deny these adoptees the right to U.S. citizenship. The immigration laws that were drafted with an exclusionary purpose were clearly not intended for this situation.

If you are an international adoptee who is unsure of your immigration status I encourage you to investigate the facts. Talk to your parents, an adoption advocate, an immigration/adoption attorney, or the agency which is responsible for your adoption.   You may be one of the fortunate ones who are able to remedy your situation fairly easily.

If you fall into one of the categories that does not currently have a legal remedy, you can help by advocating for change.

To advocate for change, contact your U.S. legislators, and advocate groups such as National Council for Adoption (NCFA).

See also the Adoptee Citizenship Factsheet published by the NCFA, October, 2011.

-Laura Kalish
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28 Sep 2011

Adult Adoption or Simple Name Change?
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An adult person who wishes to be adopted may do so, and an adult adoption is generally simpler and quicker than the adoption of a minor child. This is because an adult can consent to his/her own adoption, and does not have to get the biological parent’s permission.

An adult adoption may include a name change for the adoptee, but it doesn’t have to.

The final and legal effect of an adult adoption is to sever the legal parental ties to the previous, still living, biological parent(s), and create new ties with the adoptive parent(s). Therefore, the adoptee must realize that s/he will no longer be the legal child of the former parent whose parental ties have been severed. (this can come into play if the former biological parent becomes ill or dies after the adoption. The adoptee will no longer have rights as “family” as to that former parent and may not be able to get in to the hospital, have a voice in decisions, or inherit).

The adult who is seeking adoption could also ask for a court-ordered name change, and change his last name to that of the family that he feels close to. The name change will give him the same last name as the family, but will not sever the prior relationship with his biological parents, nor will it create the parent-child relationship with the “new” family.

Both adult adoption and adult name change are relatively uncomplicated procedures legally (unless the person seeking the name change has a criminal history or it appears that s/he is trying to run from obligations or defraud creditors by the name change).

If the purpose of the legal action is to make the potential adoptee a full-fledged legal member of the family, with all the rights that family members have towards each other, including inheritance, then an adult adoption is the way to go.
If, on the other hand, the “adoptee” does not want to sever the legal ties with his/her biological family, but wants to bear the last name of his/her “other family”, a name change may be just the right remedy.

Kalish Law Office has been providing legal services to businesses and families for over 27 years. “Passionate, Professional and Personal. We Make the Difference.” Since 1984 Tenemos una abogada que habla español

www.kalishlawtexas.com
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30 Aug 2011

News on Intercountry Adoption from the U.S. State Department
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The U.S. State Department website about intercountry adoption is an excellent resource. This site has information about the process, about the Hague Convention, and individual countries, along with the latest news, alerts and notices.
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30 Aug 2011

Some Guatemalan Adoptions Moving Along Again
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At least some of the international adoptions of Guatemalan children which were suspended in 2007 can begin moving again after a decree recently issued by Guatemala.

The pending cases were halted in 2007 due to fraud in the process and charges of child theft.

The adoptive parents in the suspended cases will need to prove that they were not responsible for fraud and they have to show a “prolonged relationship” with the child in order to complete the cases.
There are many other cases that are still in limbo that are not covered by this decree, although officials from both Guatemala and the U.S. are working on these issues.

For more detail on this story, click here: http://yhoo.it/nh5qwq

The Kalish Law Office in The Woodlands, Texas has been assisting clients with international and domestic adoptions for over 27 years. www.KalishLawTexas.com
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2 Jun 2011

Avoiding Adoption Scams
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This is an excellent article which was just posted on the National Council for Adoption website. Very good, practical advice on how to spot and avoid adoption scams.

http://bit.ly/myG83E
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26 Apr 2011

Courtroom Behavior 101 for Clients
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If you have a pending legal case that will require that you attend a trial or hearing, you may be a bit nervous. That is quite normal, even for people who have been down that road before.

If you have an uncontested matter (such as an agreed divorce, adoption, or probate case), you won’t have to worry about “the opposition”. That can make things less stressful, but most people still tend to worry about how they will appear, whether they will become tongue-tied and what to do if they are asked a question and don’t know the answer.

Here are some guidelines to help take some of the worry out of that court appearance:
1. Dress appropriately. No shorts (not even nice dress shorts), no T-shirts or tanks, nothing with a slogan printed on it. Do not chew gum. Look and feel professional and stand tall.
2. Don’t forget to turn off your cell phone. Since it is too easy to assume that it’s on vibrate when it isn’t, it’s best to turn it off altogether. Nothing angers a judge or bailiff more quickly than a ringing phone blasting away at an inappropriate time.
3. Watch your nervous habits. Laughing or smiling inappropriately can be misinterpreted as disrespect and constant throat clearing, humming, or change jingling can take the attention away from the case that is being presented.
4. When you have a bench trial (trial in front of the judge): Look the judge in the eyes when you answer him or her. Be respectful and pleasant, even if you don’t like the judge or what’s being said. If the judge asks you a question directly, answer him or her directly and briefly.
5. If you have a jury trial: The jury’s perception of you is very, very important. Be quiet and calm at all times. Do not roll your eyes, shake your head or glare at anyone. Be calm when communicating with your attorney in the jury’s presence. If you appear to be argumentative with your attorney (who is on your side), the jury members may decide that you are probably an unreasonable or difficult person to deal with in general.
6. Take your time in answering questions. Listen carefully to the whole question and answer as directly and briefly as you can. Speak up loudly enough to be heard. Speak distinctly and if you really don’t understand the question, say so.
7. Relax when appropriate. When you are in court for a happy occasion (finalization of an adoption, a name change, or to solidify an agreement that has been reached in a long-pending case), it is perfectly fine to smile, look happy, respond to congratulations from the judge and attorneys, and let out a big sigh of relief.
The above guidelines can help you make your courtroom visit less stressful. If things don’t go exactly as you planned, promise yourself to learn from the experience and do better if there is a next time.

The attorneys at the Kalish Law Office have been accompanying their clients to court since 1984. Located in The Woodlands, Texas, north of Houston. 281-363-3700
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