A Reader Asks: Can I Adopt In the United States If I'm Undocumented?

"I really want be a father, build a family but I don't know how start," a reader asks our expert, Brian Esser. "In my case I will be a single dad because I haven't yet found a good man to share my life with. But what concerns me is my status here in the US. I'm Brazilian, I don't have "papers" even though I have a good job. Because of this I don't know if I can adopt a kid here. So my question is: can I adopt a kid here or is not allowed for me?"

Even before the current occupant of the White House began his unprecedented assault on immigration into the United States, your question is one that doesn't have a clear answer. As a lawyer, I always start with the black letter law. My state, New York, has no statutory requirement that a person be a US citizen, or even have any legal status in this country, to adopt. As for other states, I did a quick survey of state law and did not see citizenship requirements in summaries of other states' law (but my research was by no means exhaustive). I've worked with undocumented parents to complete step- and second-parent adoptions for their children and successfully finalized those cases. I have worked with private adoption clients who are permanent residents, or have non-immigrant visas, but not yet with an undocumented parent-to-be.

Regardless whether requirements that adoptive parents are citizens are written into the law, bear in mind that there are a number of gatekeepers in the adoption process. You may find that lawyers, social workers, or agencies might decline to work with you because of your immigration status. Some of the judges that I appear before ask more detailed questions about immigration, while others take a "Don't Ask, Don't Tell" approach. Assuming good intentions, these judges and adoption professionals might be concerned about what would happen if you were subject to removal proceedings after a child had been placed with you, but before you were able to finalize an adoption.

What if you had to leave the United States, but you had made commitments to a birth parent regarding open adoption, and you were unable to travel back for agreed upon visits? Are you able to obtain Brazilian citizenship for your child if you have to, or decide to, return to your home country? It's tempting to say it's none of their business and you would figure it out, but courts and adoption professionals see taking these factors into consideration as part of their mandate. I cannot say for certain that you will not be able to adopt, but I would expect that it will be a more challenging path given your circumstances.

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Posted by Brian Esser

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