Helping Family Members in Need: Adopting Relatives

Many immigrant families in the United States have chosen to lend a helping hand to nephews, nieces or cousins through adoption. #Kinship adoption# as the Child Welfare League of America describes it, involves family members who wish to assist children in the extended family who have suffered some life tragedy. Most immigrant families know of young and promising relatives who would benefit from being raised in a stable family in the United States; the absence of this opportunity may be viewed by some as tragic.

I have assisted clients whose cousin or nephew came to the United States for medical care or life-saving surgical procedures and required ongoing care for years into the future. That child’s parents did not have a basis to enter the United States yet the child needed to remain to receive essential medical care. These were cases where a kinship adoption was necessary to obtain legal status for the child and also provide for their welfare. Other relatives simply wish to assist a son or daughter of a single mother who is unable to provide the care and education the child needs to succeed in life. Many families confront the possibility of adoption during the time that the child has come to visit aunts and uncles in the United States.

If you are in this situation it is much more advantageous to consider adoption while the child is still on U.S. soil. In the Los Angeles county area for instance where the child is a cousin, niece or nephew as opposed to a stepchild or grandchild, the adopting family must apply for legal guardianship and then after one year proceed to a full-fledged adoption of the child. These time constraints are important because to obtain U.S. Citizenship it is necessary to establish legal custody, which can begin with guardianship and complete the adoption prior to reaching the age of 16.

It is also important to understand that for domestic adoption cases the child must have been admitted as a legal permanent resident before proceeding directly to citizenship otherwise adjustment of status papers can be filed following adoption.

Many families also consider adopting family members overseas. This is very challenging because it is incumbent on the parents to adopt overseas, and establish legal and actual custody and control of the child for a period of two years. This two-year period can be counted in shorter periods that add up to two years and can take place before or after the adoption. For instance where there is already legal guardianship, a grandmother could reside with the child for six months prior to the adoption takes place, return to the United States and then come back to the home country for another period of 18 months and satisfy the two year requirement.

Exceptions to the two year custody rule are made where it can be established that the child is effectively an “orphan” where the biological parents are deceased, where both parents have abandoned the child, or where there is death or abandonment of one parent and the remaining parent is incapable of providing care to the child and releases the child for immigration or adoption. In these cases the child may be brought to the United States for domestic adoption purposes.

The legal requirements and procedures for adoptions are complex and require intelligent and informed planning before taking affirmative steps to adopt a child. Adopting the child while he or she is still abroad can actually create unintended obstacles and difficulties not encountered if the adoption was completed in the United States. Another important issue for clients is unofficial adoptions where a child has been given to the parents as an infant without certification of the government or adoption agency. “Legitimizing” this child can be an essential step to avoid accusations of fraud or misrepresentation or even alien smuggling by U.S. Embassy officials who can demand DNA testing for children of immigrating parents.

If you are considering adopting a child either in the United States or overseas it is imperative that your plan carefully and consult a knowledgeable immigration attorney prior to taking any steps.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.