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West's Ann.Cal.Fam.Code § 8616.5
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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.
(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.
(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.
(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.)
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.
"(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
7th, and 8th Ex.Sess. laws; urgency legislation through Ch. 217 of the 2010
Reg.Sess.; and propositions on the 6/