Interstate Adoption

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interstate adoption

The adoption of a child who lives in one state by adoptive parents who reside in another state. The INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) is an agreement between the states that delineates how interstate adoption should be handled. All states in the United States are members of the compact at the time of this writing.

State social services departments in each state administer the compact and ensure compliance with state laws.

A 1989 article by Bernadette W. Hartfield in the Nebraska Law Review delineated some of the problem areas of the interstate compact.

According to Hartfield, a key problem in such adoptions is a lack of awareness of the compact and a consequent lack of compliance. The compact is not described or even referred to in most state adoption laws. In many states, the compact is not cross-referenced under "adoption." As a result, there is a problem with "unintentional noncompliance."

Hartfield says the problem is especially significant in INDEPENDENT ADOPTION. She says noncompliance may be unintentional or purposeful.

If purposeful, an attorney may choose not to comply knowing one of the states places restrictions on independent adoption. In addition, noncompliance might occur because it is presumed compliance would take too long and the individuals wish to place an infant immediately. Finally, the penalties for noncompliance are either non-existent or not very severe. (Hartfield does cite one case in which an adoption was overturned because of noncompliance with the ICPC: In re Adoption of T.M.M., a 1980 case wherein the Montana Supreme Court overturned an adoption because of noncompliance and the child was returned to the birthmother.)

According to Hartfield, in some cases a pregnant woman may cross state lines to have her child in another state where the adoption laws are more favorable or where the adoptive parents live. Yet this would still be considered an "interstate adoption" by the provisions of the Compact Administrators' Manual, which states, "Where the expectant mother crosses a state line as part of the placement plan and arrangement, the transaction should be viewed as an interstate placement."

Another problem identified by Hartfield is that compliance with the "sending" state's adoption laws is not required, but she admits, "In usual practice, the compact administrator in a receiving state is unlikely to approve a placement that is violative of the sending state's laws."

Yet in some instances, a revocation of adoption that could have occurred in the sending state was denied by the receiving state. Hartfield cites the case In re Male Child Born July?15, 1985. A child was born in Montana and placed with an Idaho family. The mother wanted the child placed immediately, which occurred after ICPC approval was requested but before it was received. Three days after the placement, however, the mother changed her mind. While the mother was attempting to revoke her consent in the Montana courts, ICPC approval was granted in Idaho, and the adoption was finalized there.

The mother lost her case because in Idaho, her original parental consent was sufficient to uphold the adoption. As a result, the Idaho law prevailed over the Montana law.

In another case, In re Adoption of C.L.W., a child was placed with an adoptive couple. The birthmother in Pennsylvania then changed her mind, but the adoptive parents returned to their home in Florida and sought the adoption. The birthmother alleged the adoption should be overturned because the ICPC was not complied with. The Florida Court of Appeals agreed that the ICPC had not been complied with but said, "No harm was suffered by the failure to comply." The court also said the birthmother as a "sending agency" had a responsibility to comply with the ICPC, and the adoption was upheld.

Attorney Alice Bussiere has also discussed serious problems involved in facilitating interstate adoptions. According to Bussiere, there are an array of issues to resolve in interstate adoption: how adoptive parents should be identified, how home studies should be handled, how legal and financial responsibilities are overseen and how assurance of a proper placement is made.

Another problem is that many adoptive parents who relocate may have difficulty using a medicaid card from the state they left, and the state they enter may refuse to issue a Medicaid card. In addition, what is covered by Medicaid varies from state to state; for example, physical therapy may be offered in the original state but not in the state to which the adoptive parents relocate. The INTERSTATE COMPACT ON ADOPTION AND MEDICAL ASSISTANCE was formed to solve this problem, although not all states have joined this compact as of this writing.

Other problems include difficulty finding adoptive parents in other states and aversion or confusion over using state exchanges (using a COMPUTER may seem too cold and impersonal for a social worker trained in one-on-one communication; however, a state or national exchange may often be the only way to locate suitable adoptive parents from other states).

Because each state has its own adoption laws, there are numerous problems when these conflict; for example, the time allowed a birthparent to revoke CONSENT (TO AN ADOPTION), in the case of an infant adoption and the type and timing of actions required to terminate parental rights and other problems. (The interstate compact on the placement of children can help resolve many of these problems.)

There is protection for children with SPECIAL NEEDS regarding adoption assistance agreements. The agreement should state that it applies without regard to the state residence of the adoptive parents. For example, if the parents move, the agreement should still apply; however, if a child has specific medical or social needs covered under Medicaid, parents should request those needs be written into the agreement in the event they relocate and those needs are not normally covered by the other state.

Alice Bussiere, J.D., "Issues in Interstate Adoptions," in Adoption of Children with Special Needs: Issues in Law and Policy, edited by Ellen C. Segal with Mark Hardin (Washington, D.C.: American Bar Association, 1985).

Bernadette W. Hartfield, "The Role of the Interstate Compact on the Placement of Children in Interstate Adoption," Nebraska Law Review 68 (1989): 292-329.

Joan H. Hollinger, ed.-in-chief, Adoption Law and Practice (New York: Matthew Bender, 1988).

Find more information on interstate adoption

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