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Reducing Unregulated Transfers of Child Custody

| Oct 28, 2015 | Analysis

    “I am totally ashamed to say it but we do truly hate this boy,” wrote an adoptive parent on an online bulletin board. That parent took a step that many others have taken in recent years: turning to the Internet to find a new home for an adopted child. A 2013 Reuters investigation revealed that in many cases families of adopted children seek to end the adoptive relationship quickly and without legal oversight through a process sometimes called “unregulated custody transfers” or “private re-homing.”

    ThinkstockPhotos-86488427In response to media attention about unregulated transfers of children, the U.S. Government Accountability Office (GAO) released a report last month providing an in-depth view of unregulated custody transfers and the steps being taken to address the problem. Following its evaluation of federal and state agency action, the GAO concluded that “gaps in services” for adoptive families leave families without support and unintentionally encourage unregulated custody transfers.

    Currently, adoptions are governed by regulations issued by federal and state agencies as well as by private adoption organizations. The U.S. Department of Health and Human Services (HHS) provides support and financial assistance for adoptions and also collects data on children who are in the child welfare system. But in most cases, state agencies implement the requirements for adoptions: home standards and pre-adoption training.

    In describing the unregulated custody transfer phenomenon, the GAO focused on the factors that allow these transfers to occur. During the course of its 15-month investigation, the GAO identified 23 social media posts written by parents who actively sought to transfer custody of a child. These posts suggested that the parents were unable to care for the children; most cited the child’s behavioral or mental health needs as the impetus for desiring a transfer. The GAO acknowledged the limitations of its investigation, stating that the office was unable to follow up with the original posters and cannot know whether these custody transfers were carried out through official or unregulated means.

    The GAO added that some families bypass the regulated custody process through a power of attorney exchange. Once a family seeking a custody transfer finds a new family willing to take its adopted child, the adoptive family might simply sign a power of attorney document to delegate authority over the child to the new family. Normally, when an adoptive family dissolves the adoption, the child is returned to the child welfare system and then placed with a new family by a state agency. Power of attorney arrangements generally are not overseen by state or federal agencies; consequently, these new, adoptive families are not required to prove that they will provide a suitable environment for the child.

    Although federal and state officials are aware that these unregulated transfers are happening, they reportedly have little leverage to eliminate them. Furthermore, no federal agency currently tracks unregulated custody transfers, so the extent of the problem is unknown. The GAO recognized that because such transfers take place outside of the legal system, it is difficult to collect meaningful data.

    Further exacerbating the problem, state and federal agencies have limited regulatory authority to monitor post-adoption activity—something that also contributes to the dearth of data on the problem. Among the seven states surveyed, none stated that their child welfare agencies are even required to monitor whether an adopted child remains with the adoptive family.

    Given these limitations, HHS recognized an opportunity to improve post-adoption tracking. In the current regulatory scheme, federal law provides that adoptive families are eligible to receive financial support in certain circumstances. In some cases, eligibility could depend on a recipient submitting signed affidavits describing any changes within the adopted family.

    However, despite reporting requirements, current federal regulations prohibit child welfare agencies from suspending or terminating subsidies even if the affidavit is not submitted. Recognizing that these regulations allow adoptive families to circumvent reporting requirements, HHS recently solicited public comment on proposed revisions to its subsidy policies. When the comment period closed, HHS received 41 comments—many in support of strengthening reporting requirements for the subsidies.

    States are also taking steps to reduce unregulated transfers. Wisconsin became the first state to pass a law intended to limit unregulated custody transfers, and several other states have followed suit. Wisconsin’s law prohibits unlicensed persons from advertising adoptions online and requires a court’s permission before custody can be transferred to a nonrelative.

    Other states focus on the way their child welfare agencies handle post-adoption services. These reforms aim to provide resources to adoptive families that may be struggling after the adoption. For example, in Virginia, the state child welfare agency plans to modify its contract solicitation process so additional regional organizations—rather than one state-wide organization—can provide post-adoption services. Also, Arkansas passed a law directing its state child welfare agency to provide post-adoption services to all adoptive families that seek help.

    The GAO report concluded that despite the changes being made on both state and federal levels, “gaps in services” for adoptive families still exist. However, federal and state agencies pledged to continue working together to reduce these gaps so that adoptive families may forego unregulated transfers.



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