West's Ann.Cal.Fam.Code § 8616.5

West's Annotated California Codes Currentness
Family Code
Division 13. Adoption
Part 2. Adoption of Unmarried Minors
Chapter 1. General Provisions

§ 8616.5. Postadoption contact agreements

(a) The Legislature finds and declares that some adoptive children may benefit from either direct or indirect contact with birth relatives, including the birth parent or parents or an Indian tribe, after being adopted. Postadoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children and the agreements are voluntarily entered into by birth relatives, including the birth parent or parents or an Indian tribe, and adoptive parents. Nothing in this section requires all of the listed parties to participate in the development of a postadoption contact agreement in order for the agreement to be entered into.

(b)(1) Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents or an Indian tribe, and the child from voluntarily entering into a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents or an Indian tribe, and the child if the agreement is found by the court to have been entered into voluntarily and to be in the best interests of the child at the time the adoption petition is granted.

(2) The terms of any postadoption contact agreement executed under this section shall be limited to, but need not include, all of the following:

(A) Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings, and the child's Indian tribe if the case is governed by the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

(B) Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both, and in cases governed by the Indian Child Welfare Act, the child's Indian tribe.

(C) Provisions for the sharing of information about the child in the future.

(3) The terms of any postadoption contact agreement with birth relatives other than the child's birth parent or parents shall be limited to the sharing of information about the child, unless the child has a preexisting relationship with the birth relative.

(c) At the time an adoption decree is entered pursuant to a petition filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000, the court entering the decree may grant postadoption privileges if an agreement for those privileges has been entered into, including agreements entered into pursuant to subdivision (f) of Section 8620. The hearing to grant the adoption petition and issue an order of adoption may be continued as necessary to permit parties who are in the process of negotiating a postadoption agreement to reach a final agreement.

(d) The child who is the subject of the adoption petition shall be considered a party to the postadoption contact agreement. The written consent to the terms and conditions of the postadoption contact agreement and any subsequent modifications of the agreement by a child who is 12 years of age or older is a necessary condition to the granting of privileges regarding visitation, contact, or sharing of information about the child, unless the court finds by a preponderance of the evidence that the agreement, as written, is in the best interests of the child. Any child who has been found to come within Section 300 of the Welfare and Institutions Code or who is the subject of a petition for jurisdiction of the juvenile court under Section 300 of the Welfare and Institutions Code shall be represented by an attorney for purposes of consent to the postadoption contact agreement.

(e) A postadoption contact agreement shall contain the following warnings in bold type:

(1) After the adoption petition has been granted by the court, the adoption cannot be set aside due to the failure of an adopting parent, a birth parent, a birth relative, an Indian tribe, or the child to follow the terms of this agreement or a later change to this agreement.

(2) A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child.

(3) A court will not act on a petition to change or enforce this agreement unless the petitioner has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings to resolve the dispute.

(f) Upon the granting of the adoption petition and the issuing of the order of adoption of a child who is a dependent of the juvenile court, juvenile court dependency jurisdiction shall be terminated. Enforcement of the postadoption contact agreement shall be under the continuing jurisdiction of the court granting the petition of adoption. The court may not order compliance with the agreement absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action, and that the enforcement is in the best interests of the child. Documentary evidence or offers of proof may serve as the basis for the court's decision regarding enforcement. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the child's home to the detriment of the child.

(g) The court may not award monetary damages as a result of the filing of the civil action pursuant to subdivision (e) of this section.

(h) A postadoption contact agreement may be modified or terminated only if either of the following occurs:

(1) All parties, including the child if the child is 12 years of age or older at the time of the requested termination or modification, have signed a modified postadoption contact agreement and the agreement is filed with the court that granted the petition of adoption.

(2) The court finds all of the following:

(A) The termination or modification is necessary to serve the best interests of the child.

(B) There has been a substantial change of circumstances since the original agreement was executed and approved by the court.

(C) The party seeking the termination or modification has participated, or attempted to participate, in good faith in mediation or other appropriate dispute resolution proceedings prior to seeking court approval of the proposed termination or modification.

Documentary evidence or offers of proof may serve as the basis for the court's decision. No testimony or evidentiary hearing shall be required. The court shall not order further investigation or evaluation by any public or private agency or individual absent a finding by clear and convincing evidence that the best interests of the child may be protected or advanced only by that inquiry and that the inquiry will not disturb the stability of the child's home to the detriment of the child.

(i) All costs and fees of mediation or other appropriate dispute resolution proceedings shall be borne by each party, excluding the child. All costs and fees of litigation shall be borne by the party filing the action to modify or enforce the agreement when no party has been found by the court as failing to comply with an existing postadoption contact agreement. Otherwise, a party, other than the child, found by the court as failing to comply without good cause with an existing agreement shall bear all the costs and fees of litigation.

(j) The Judicial Council shall adopt rules of court and forms for motions to enforce, terminate, or modify postadoption contact agreements.

(k) The court may not set aside a decree of adoption, rescind a relinquishment, or modify an order to terminate parental rights or any other prior court order because of the failure of a birth parent, adoptive parent, birth relative, an Indian tribe, or the child to comply with any or all of the original terms of, or subsequent modifications to, the postadoption contact agreement, except as follows:

(1) Prior to issuing the order of adoption, in an adoption involving an Indian child, the court may, upon a petition of the birth parent, birth relative, or an Indian tribe, order the parties to engage in family mediation services for the purpose of reaching a postadoption contact agreement if the prospective adoptive parent fails to negotiate in good faith to enter into a postadoption contact agreement, after having agreed to enter into negotiations, provided that the failure of the parties to reach an agreement is not in and of itself proof of bad faith.

(2) Prior to issuing the order of adoption, if the parties fail to negotiate in good faith to enter into a postadoption contact agreement during the negotiations entered into pursuant to and in accordance with paragraph (1), the court may modify prior orders or issue new orders as necessary to ensure the best interest of the Indian child is met, including, but not limited to, requiring parties to engage in further family mediation services for the purpose of reaching a postadoption contact agreement, initiating guardianship proceeding in lieu of adoption, or authorizing a change of adoptive placement for the child.

CREDIT(S)

(Formerly § 8714.7, added by Stats.1997, c. 793 (A.B.1544), § 5. Amended by Stats.2000, c. 910 (A.B.2921), § 4; Stats.2000, c. 930 (S.B.2157), § 3. Renumbered § 8616.5 and amended by Stats.2003, c. 251 (S.B.182), § 8. Amended by Stats.2004, c. 858 (S.B.1357), § 4; Stats.2006, c. 838 (S.B.678), § 9; Stats.2009, c. 492 (A.B.941), § 3.)

HISTORICAL AND STATUTORY NOTES

2004 Main Volume

Section 32 of Stats.1997, c. 793 (A.B.1544), provides:

"In enacting this legislation, it is the intent of the Legislature that these provisions result in cost efficiencies. Any cost savings resulting from the implementation of these provisions shall only be used to supplement, not supplant, other children's services programs, including children's health and mental health initiatives and child welfare."

Section affected by two or more acts at the same session of the legislature, see Government Code § 9605.

Presumption that chapter numbering order is order in which bills were approved by the Governor, see Government Code § 9510.

Stats.2000, c. 930, § 3, rewrote subds. (a) through (c); in subd. (g), substituted "subdivision (e)" for "subdivision (f)"; in subd. (j), substituted "2001" for "1998"; and substituted "postadoption contact agreement" for "kinship adoption agreement" throughout. Prior to amendment, subds. (a) through (c) read:

"(a) Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents, and the child from entering into a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents, and the child if the agreement is found by the court to be in the best interests of the child at the time the adoption petition is granted. The terms of any kinship adoption agreement executed under this section shall be limited to, but need not include, all of the following:

"(1) Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings.

"(2) Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both.

"(3) Provisions for the sharing of information about the child in the future.

"(b) At the time an adoption decree is entered pursuant to a petition filed under Section 8714.5, the court entering the decree may grant postadoption privileges when an agreement for those privileges has been entered into pursuant to subdivision (a).

"(c) This section is applicable only to kinship adoption agreements in which the adopting parent is a relative of the child or a relative to the child's half-sibling and the adoption petition is filed under Section 8714.5. For purposes of this section and Section 8714.5, 'relative' means an adult who is related to the child or the child's half sibling by blood or affinity, including all relatives whose status is preceded by the words 'step,' 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons, even if the marriage was terminated by death or dissolution."

Stats.2000, c. 930, § 6, provides:

"SEC. 6. The State Department of Social Services shall adopt regulations as necessary to implement the provisions of this act no later than July 1, 2001."

Stats.2003, c. 251, made nonsubstantive changes in subds. (f) and the second paragraph of subparagraph (C) of (h)(2); and, in subd. (k), substituted "may" for "shall" prior to "may not set aside a decree of adoption".

2010 Electronic Update                                                          

2004 Legislation

Stats.2004, c. 858 (S.B.1357), rewrote subds. (b) and (c), and in subd. (j), deleted "By July 1, 2001," from the beginning of the subdivision. Prior to amendment, subds. (b) and (c) had read:

"(b) Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents, and the child from voluntarily entering into a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents, and the child if the agreement is found by the court to have been entered into voluntarily and to be in the best interests of the child at the time the adoption petition is granted.

"(1) Except as provided in paragraph (2), the terms of any postadoption contact agreement executed under this section shall be limited to, but need not include, all of the following:

"(A) Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings.

"(B) Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both.

"(C) Provisions for the sharing of information about the child in the future.

"(2) The terms of any postadoption contact agreement entered into pursuant to a petition filed under Section 8714 shall be limited to the sharing of information about the child unless the child has an existing relationship with the birth relative.

"(c) At the time an adoption decree is entered pursuant to a petition filed under Section 8714 or 8714.5, the court entering the decree may grant postadoption privileges when an agreement for those privileges has been entered into pursuant to subdivision (a)."

2006 Legislation

Stats.2006, c. 838 (S.B.678), inserted "or an Indian tribe" six times throughout the section; in subd. (a), added the third sentence; in subd. (c), added the second sentence; in subd. (k), added ", except as follows:" and added pars. (1) and (2).

Cost reimbursement provisions to local agencies and school districts relating to Stats.2006, c. 838 (S.B.678), see Historical and Statutory Notes under Family Code § 170.

For letter of intent and Governor's signing message regarding Stats.2006, c. 838 (S.B.678), see Historical and Statutory Notes under Family Code § 170.

2009 Legislation

Stats.2009, c. 492 (A.B.941), in subd. (b)(2), substituted "The" for "Except as provided in paragraph (3), the"; and, in subd. (b)(3), inserted "with birth relatives other than the child's birth parent or parents", and substituted "a preexisting" for "an existing".

West's Ann. Cal. Fam. Code § 8616.5, CA FAM § 8616.5

Current with all 2009 Reg.Sess. laws; all 2009-2010 1st through 5th,            
7th, and 8th Ex.Sess. laws; urgency legislation through Ch. 217 of the 2010    
Reg.Sess.; and propositions on the 6/8/2010 ballot.                            
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