CASA / GAL Community:   State & Local ProgramsJudges' PageAdvocacy ResourcesMember Network Board Resources

A Guide for Judges in Outgoing Cases Under the Hague Adoption Convention

William BistranskyWilliam J. Bistransky
Division Chief for Intercountry Adoption, Office of Children’s Issues, Bureau of Consular Affairs, US Department of State

Summary: This article summarizes information from A Web Guide for State Authorities on Outgoing Adoption Cases from the United States to Another Convention Country on the US Department of State’s intercountry adoption website and highlights key information needed by judges to meet the requirements under US law in outgoing cases covered by the convention.

_____________________________________________________________________________________________________ 

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993  is the treaty governing intercountry adoption between the US and other countries for which the convention has entered into force. Because increasing numbers of US citizens residing abroad and foreigners are seeking to adopt children in US foster care, ensuring that the requirements of the convention and the US legislation implementing it (the Intercountry Adoption Act of 2000) are understood and met has become more important.

This article summarizes information from A Web Guide for State Authorities on Outgoing Adoption Cases from the United States to Another Convention Country on the US Department of State’s intercountry adoption website and highlights key information needed by judges to meet the requirements under US law in outgoing cases covered by the convention.

Identifying an Outgoing Case

  • Status of both the country of origin and receiving country as convention countries: The convention requirements apply only if the country of origin (the US) and the receiving country (the convention country to which the child is emigrating in connection with his adoption) are parties to the convention.
  • Timing of case initiation, the transition rule and “appropriate application”: The convention entered into force for the US on April 1, 2008. The convention and the Intercountry Adoption Act (IAA) do not apply in an outgoing case involving a USresident child “if the prospective adoptive parent(s) of the child initiated the adoption process in their country of residence with the filing of an appropriate application” before April 1, 2008. Similarly, the convention provides that it does apply to every case where an application has been received by the central authority of the prospective adoptive parent(s)’ country of residence after April 1, 2008. See the web guide, pages 9-10, for a discussion of “appropriate application.” 
  •  Residence of child: US law implementing the convention applies only where a child resident in the country of origin has been, is being, or will be moved to the receiving country for the purposes of adoption by prospective adoptive parent(s) resident in the receiving country. See IAA § 3(10).
  •  Residence of prospective adoptive parent(s): The residence of the prospective adoptive parent(s) (usually non-US citizens) will in most cases be evaluated by the receiving country prior to the US State Court adoption proceedings. Special considerations may be relevant to US citizens residing abroad. For guidance on deferring to receiving country determinations of residence, see the web guide, pages 10-11.
  •  Residence of US citizens residing in convention countries: The US Department of State generally considers a US citizen residing in a convention country to be resident in the US if the US citizen is domiciled in the US or intends to establish a domicile in the US at any point before the child’s 18th birthday. These issues are further explored in the web guide, page 11.
  •  Movement of the child to a receiving convention country for the purpose of adoption: An outgoing convention adoption occurs when prospective adoptive parents residing in a convention country seek to adopt a child resident in the US and, in connection with the adoption, the child has moved or will move from the US to the convention country. See the web guide, page 11.

Why Getting It Right Matters to the Adoptive Family

There is a practical advantage to families who can obtain a Hague Adoption Certificate (HAC) certifying that the US State Court has met the requirements of the IAA: the convention provides that adoptions so certified will be recognized in convention countries. Additionally, the HAC and its counterpart, the Hague Custody Declaration (HCD) (for cases involving a custody order for the purpose of adoption abroad), pave the way for adoptive families to travel abroad with the child in order to reside permanently with her/him in the receiving country. The US Department of State—acting as the convention central authority for the US—makes the determination about a court’s fulfillment of the regulatory requirements for issuance of an HAC and HCD. See the Intercountry Adoption website of the Office of Children’s Issues, US Department of State for additional information on HACs and HCDs.

Determinations and Verifications Made by the Court in Convention Adoption Cases

The IAA requires the US State Court to make certain determinations and verifications before entering the order for the adoption or for granting of custody for purpose of adoption abroad. Similarly, US regulations, 22 CFR Part 97.2, require a party applying for the HAC or HCD to include detailed court findings in support of its application. (For discussion of these findings, see the web guide, pages 13-16.)

Alternatively, if the court has not verified compliance with a particular requirement, an applicant may submit “authenticated documentation showing that such requirement nevertheless has been met and a written explanation of why the court’s verification of compliance cannot be submitted.” See 22 CFR Part 97.2.

Eligibility to Provide Adoption Services in Outgoing Cases—Private Adoption Service Providers

Private adoption service providers must be accredited or approved to provide adoption services in connection with a convention adoption case. See the Intercountry Adoption website of the Office of Children’s Issues, US Department of State, for information on accreditation and approval of private providers and our current list of accredited and approved providers.

Public Providers

Public domestic authorities do not have to be accredited or approved to provide adoption services in a convention adoption case.

What Constitutes an Adoption Service?

Adoption services in the context of the convention are the six services defined in IAA § 3(3).

Accreditation Regulations and Standards for Adoption Service Providers

The accreditation regulations (22 CFR Part 96) set standards for accreditation and approval to ensure that US-accredited and US-approved adoption service providers perform their duties in accordance with the convention and the IAA.

 

Editor’s Note: William Bistransky is a professional US diplomat responsible for US intercountry adoption policy both under the Hague Adoption Convention and with regard to bilateral adoptions occurring outside the convention.

 

 

 

 

The US Department of Justice has supported CASA advocacy since 1985 through its Office of Juvenile Justice and Delinquency Prevention.
This Web site is funded in part through a grant from the Office of Juvenile Justice and Deliquency Prevention, Office of Justice Programs, US Department of Justice. Neither the US Department of Justice nor any of its components operate, control, are responsible for, or necessarily endorse, this Web site (including, without limitation, its content, technical infrastructure, and policies, and any services or tools provided).