Laura Kalish Adoptions Law Blog on Lawyers.com

Adoption laws vary by jurisdiction. A judge in an adoption case has power to deny a request to adopt if the laws and regulations have not been followed.   However, some requirements may be waived by the judge if the judge decides that it is in the ‘best interests of the child’ to waive a particular requirement, and no harm would result.

The Judge denied the petition in three year old Mercy James’ case because Madonna had not lived with Mercy in Malawi for at least 18 months prior to the adoption, which is a legal requirement in that country.

The Malawi Human Rights Commission is reviewing the case.

The case has sparked debate, with individuals and groups weighing in on both sides of the issue. 

Those who are pro-adoption have cited the fact that Madonna has wholeheartedly given generously to orphans in that country, that Mercy has bonded with Madonna and already sees her as her mother, and that there are enough safeguards in place to assure that there is no “child trafficking” going on.  Most importantly, they say, it is in Mercy’s best interest to be adopted by Madonna.

Those against the adoption fear that waiving residency rules will lead to more laxity in requirements which were designed to protect children, believe that Madonna’s star status is allowing her to receive “special treatment”, feel that Mercy should be raised in her home country by relatives, or feel that a child should remain in his/her home country unless all available options are exhausted. 

A US citizen adopting internationally must be sure to follow several sets of laws.  Any deficiency in procedure could lead to a denial of the adoption, or even result in the parent having an adopted child who cannot legally immigrate to the US.  For instance, if a Texas resident adopts a child from Malawi, that Texan must follow; 1) U.S. federal law for immigration 2) the law in Malawi  and 3) international laws and treaties relating to adoption. 

The laws pertaining to international adoption can be tricky and confusing and are very country-specific and constantly changing. Anyone who is hoping to adopt a child from another country is well-advised to consult an attorney who is familiar with both family law and US immigration law relating to international adoptions.  This consult should occur PRIOR to any steps taken for a potential adoption, as early in the process as is possible.  This is true even if the child who may be adopted is a relative or friend of the potential adoptive parents.

There are many restrictions in place regarding who may be adopted, and the steps that must be followed in a specific order.  Although these restrictions have a good reason, (the protection of children),  potential adoptive parents can become very frustrated when their plans to adopt a certain child are thwarted.  However, it is always best to get all the information available early in the process to be sure that proper procedure is followed, and to prevent heartbreak and anxiety later on.

Madonna’s appeal is scheduled to be heard in May , 2009.

Information about international adoption is available on the website of the US Department of State at http//adoption.state.gov.

Laura Kalish is a partner in Kalish Law Office in the Houston area.  She may be reached at 281-363-3700, or by email at laura@kalishlawtexas.com.  Kalish Law Office has been representing clients in adoptions and in family law courts since 1984. The firm's website can be found at www.kalishlawtexas.com.