Intercountry Adoption

What is Intercountry Adoption?

Intercountry adoption is the process by which you:

1.            Adopt a child from a country other than your own through permanent legal means; and

2.            Bring that child to your country of residence to live with you permanently.

Intercountry adoption is similar to domestic adoption.  Both consist of the legal transfer of parental rights and responsibilities from a child’s birth parent(s) or other guardian to a new parent or parents.

Intercountry adoptions are different from domestic adoptions because of the laws that make it possible to bring the child to live where you live.  Generally speaking, to qualify as an adoption for immigration purposes into the United States, the adopted child must have the same status and relationship to the adoptive parents as a child by birth. What some countries call “adoptions” are

more accurately described as guardianships under U.S. law and are not considered adoptions for U.S. immigration purposes. Although the process can be intimidating, families from the United States adopt thousands of children in need of permanent and loving homes from other countries each year. 

Who Can Adopt?

In addition to the U.S. requirements, prospective adoptive parents need to meet India’s requirements to adopt a child from India:

                     Residency: There are no residency requirements. However, some Recognized Indian Placement Agencies (RIPAs) may ask prospective adoptive parents to reside with the child for seven days before departure from India.

                     Age of Adopting Parents:

o        Prospective adoptive parents should be at least 25 years of age and no more than 50 years of age if adopting a child age three or younger. Married couples may not have a combined age of more than 90 years. These provisions may be relaxed in exceptional cases, such as the adoption of older children, siblings, and children with special needs. Neither of the prospective adoptive parents, however, can be older than 50 years. See ‘Documents Required’ section for a list of required documents if a couple’s combined age is more than 90 years.

o        If adopting a child older than three years of age, the prospective adoptive parents should be at least 25 and no more than 55 years of age. Married couples may not have a combined age of more than 105 years.

o        Single prospective adoptive parents must be more than 30 and less than 50 years of age. The maximum age is 45 years to adopt children younger than three, and 50 years to adopt children older than three.

                     Marriage: A married couple must be in a stable relationship for at least five years. Same-sex couples are not eligible to adopt in India.

·                     Income: Prospective adoptive parents should demonstrate adequate financial resources.

·                     Other: A second adoption from India will be considered only after the legal adoption of the first child is completed, except in the case of siblings adopted at the same time. Prospective adoptive parents must be free from any contagious or terminal disease or any mental or physical condition that may prevent them from taking care of the child. A single male is not permitted to adopt a female child.

Who can be adopted?

Because India is party to the Hague Adoption Convention, children from India must meet the requirements of the Convention in order to be eligible for adoption. For example, the adoption may take place only if the competent authorities of India have determined that placement of the child within India has been given due consideration and that an Intercountry adoption is in the child’s best interests. In addition to India’s requirements, a child must meet the definition of Convention adoptee to be eligible for an immigrant visa that will allow you to bring him or her to the United States.

·                     Relinquishment and Abandonment: Regional Child Welfare Committees (CWCs) determine whether a child has been relinquished or abandoned for adoption purposes.

·                     Age of Adoptive Child: Children up to 18 years of age are eligible for Intercountry adoption, as cleared by the CWC. (Note: Under U.S. immigration laws, children adopted through the Convention process must be under the age of 16 at the time a petition is filed on their behalf, unless they are the older sibling under age 18 of a child also adopted by the same prospective adoptive parents).

·                     Sibling Adoptions: Sibling adoptions are encouraged. The maximum age limit for Intercountry adoption may be waived if the CWC approves.

·                     Special Needs or Medical Conditions: CARA reviews the home study to ensure that prospective adoptive parents are equipped to provide appropriate care for the child.

·                     Waiting Period or Foster Care: Prospective adoptive parents can foster a child with permission from the RIPA and after obtaining a “No Objection Certificate” (NOC) from CARA. The prospective adoptive parents must submit an affidavit indicating they will not leave the country without a valid court order, and may choose to provide a copy to the U.S. Embassy in New Delhi.

·                     Intra-Family Adoption: CARA is in the process of finalizing specific procedures for intra-family adoption. In the meantime, the CARA will consider applications for intra-family adoption on a case-by-case basis in exigent circumstances, such as in cases where both of the child’s parents have died. Prospective adoptive parents should submit an approved home study report and a letter from a Hague accredited adoption service provider stating that the adoption service provider will help process the case, including a commitment to provide periodic post-adoption reporting. Prospective adoptive parents habitually residing in the United States must also follow U.S. immigration procedures applicable to children adopted under the Convention.

·                     Adoption of Tibetan Children: CARA will not process cases involving the adoption of Tibetan children. If prospective adoptive parents are adopting a Tibetan child, the Ministry of External Affairs (MEA) may consider granting a clearance for the adoption or guardianship order. The MEA has taken these on a case-by-case basis, and the process can be very time-consuming.

How to Adopt?

 

India’s Adoption Authority

Central Adoption Resource Authority

Ministry of Women and Child Development

Note: If any of the following occurred prior to April 1, 2008 (the date on which the Hague Adoption Convention entered into force with respect to the United States), the Hague Adoption Convention may not apply to your adoption: 1) you filed a Form I-600A identifying India as the country where you intended to adopt; 2) you filed a Form I-600; or, 3) the adoption was completed. Under these circumstances, your adopted child’s visa application could continue to be processed in accordance with the immigration regulations for non-Convention adoptions. For more information, read about Transition Cases.

THE PROCESS

Because India is party to the Hague Adoption Convention, adopting from India must follow a specific process designed to meet the Convention’s requirements. A brief summary of the Convention adoption process is given below. You must complete these steps in the following order to meet all necessary legal requirements. Adoptions completed out of order may not confer immigration benefits on the adopted child (i.e. it is possible the child would not qualify for an immigrant visa if adopted out of order).

1.    Choose a U.S. accredited or approved adoption service provider

2.    Apply to USCIS to be found eligible to adopt

3.    Be matched with a child by authorities in India

4.    Apply to USCIS for the child to be found eligible for immigration to the United States and receive U.S. agreement to proceed with the adoption

5.    Adopt (or obtain legal custody of) the Child in India

6.    Obtain a U.S. immigrant visa for your child and bring your child home

Adopt (or Obtain Legal Custody) of Child in India Remember: 

Before you adopt (or obtain legal custody of) a child in India, you must have completed the above four steps. Only after completing these steps, can you proceed to finalize the adoption or grant of custody for the purposes of adoption in India.The process for finalizing the adoption (or obtaining legal custody) in India generally includes the following:

·                     Role of Adoption Authority:

o Regulates and monitors Intercountry adoptions, and implements the Hague Adoption Convention;

o Provides information regarding abandoned/relinquished/orphaned children available for Intercountry adoption ;

o Coordinates matching with appropriate RIPA;

o Issues the ‘No Objection Certificates” (NOCs);

o Oversees recognition of RIPAs and adoption service providers; and

o Issues confirmatory certificates (Article 23) for cases for adoptions completed in India.

Adoption Laws of India for Foreign Nationals

Introduction

The adoption of Indian children by foreign nationals or international adoption is a controversial issue. To some people it is incomprehensible why Indian children should be sent abroad at all. This situation arises because adoption is still a bit of a stigma in India. Indians are not very open to the idea of adoption. In foreign countries, there is the opposite problem where children are in short supply for adoption. While there are innumerable cases of Indian orphans being given a secure and loving home in another country, newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. In other cases, so-called adoption agencies have demanded exorbitant amounts from foreign nationals in consideration of giving a child in adoption and often this is under the label of maintenance charges and medical expenses supposed to have been incurred for the child. It is these cases that leave a bad taste in the mouth and make people wary of adoption by foreign nationals. In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children.

A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890.  The Indian court will appoint the foreigner as the child's guardian. The foreign national will take the child to his own country and adopt him or her as per the laws of his country.  

Assessing the fitness of the applicant 

A Social or Child Welfare Agency licensed or recognised by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. This agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship of the foreigner's application. The Home Study Report will include the following details: the applicant's family background, marital status, his education and employment history, his financial status and dwelling conditions, his health profile, information about other offspring, if any, and references. The agency must assess whether the applicant is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives.  

Requisite documentation

The foreign national is required to submit supporting documents along with his application. These include: a recent family photograph, his marriage certificate, a declaration of theapplicants' physical fitness duly certified by a medical doctor, a declaration of the applicants' financial status with corroborating documents such as an employment certificate, income-tax returns, bank references, and particulars of property owned by them. 

Another important annexure to the application is a declaration of willingness. This document will state that the foreigner is willing to be appointed as the child's guardian.  He will also have to furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child's arrival in his country.  The applicant must also declare that he will maintain the child and provide it with necessary education and upbringing according to their status. The foreign national is also required to sign an undertaking that states that he will send the Indian agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years. In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case. 

All the certificates, declarations and documents that are attached to the foreigner's application are required to be duly notarized by a Notary Public. The notary's signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary's signature.  

Role of the foreign welfare agency

The Social and Child Welfare Agency sponsoring the application of the foreigner must certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country. The agency must undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years. Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed. One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records. The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency. These reports will be quarterly in the first year and half yearly in the following years till the adoption has been effected. The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency. In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.  

Court procedure

The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located. The application will be filed by the Indian welfare agency or a person duly authorized by them in this regard. Next the court issues notices to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) in order that they scrutinize the guardianship application. These organizations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child's best interests. The ICCW or ICSW make their representation to the court after carefully studying the application with all the annexures, the Home Study Report, and the Child Study Report and making all necessary inquiries. 

The court will first hear all the concerned parties and examine all the documents. The court must be satisfied that the foreigner will be a suitable adoptive parent for the child and will provide the child a secure and loving home. The court must also be convinced that the child will be able to assimilate itself into the family and community of the foreigner. If the court is satisfied on all these counts, it will pass an order appointing the foreigner as the child's guardian and the foreigner will be allowed to take the child back to his country with a view to eventual adoption. In some cases, the court may even put a condition that the foreign national make provision by way of deposit or bond for the repatriation of the child to India should such a situation arise. The photograph of the child is attached to the order and counter-signed by the judge. 

Case

It is a well-documented fact that court procedures are excruciatingly slow in India. Keeping this in mind, the Supreme Court of India, in the matter of L.K. Pandey vs. Union of India, has fixed a maximum period of two months for the disposal by the courts of applications made under the Guardians and Wards Act, 1890. The same judgement has categorically dispensed with the personal presence of the foreign national for the purpose of completing legal formalities.