Shea’s Search Series
Petitioning the Court to Open Your Adoption File (for adoptees adopted in the United States)
Why you should consider a petition:
Petitioning the court to open your records is something every adoptee should try. Even the most restrictive states allow the sealed adoption file to be open via court order, and petitioning the court is usually not a difficult nor terribly expensive proposition, and your odds are slightly better than winning the lottery.
As is detailed in my search series article, “Documents”, the court file contains a variety of documents related to one’s adoption, often including the original birth certificate. The most likely occurrence is that when petitioned, the judge will instruct that only non- or de-identified information be compiled from the file and given to you, but in a few instances, judges have been known to open the entire file. A very few judges will open files to every adoptee who asks, regardless of the reason. It pays to research how the particular judge you will be appearing in front of usually responds to petitions to open the file. Local search groups often have this information, or you can post an inquiry on an email list or Usenet newsgroup, as discussed in previous parts of this Search Series.
The details of petitioning:
Petitioning the court does not require the services of a lawyer although it can help your chances of success to use one. The first step will be determining what court has your file. You probably have already obtained this information if you followed the steps detailed in the other documents of this series. The court that has your file will be the court that finalized the adoption. In the States, this is usually a county Family court, located in the county where your adoptive parents resided at the time of your adoption. Most courts will have the proper forms for petitioning available to you on request, and you do not need to be physically present at a hearing date in order for the judge to read and respond to your petition, although appearing in person can greatly enhance your chances of success. Along with the petition, you should include the reason for your request. You may simply believe the information belongs to you, and you can state this, but the sad truth is that you are more likely to be successful if there are extenuating circumstances. If you have a medical condition that could be eased with the information or with finding your birthparents, proof and explanation of that condition should be included in your petition. If there were unusual circumstances involved in your adoption, if you know your birthparents are deceased, if you already know the identity of your birthfamily, or if your adoptive parents are deceased, you should include a statement to that effect, along with proof of your claims. However, even if you do not have any unusual circumstances, and simply want the information, you should still try a petition. As stated above, some judges will release the file to adoptees just for the asking.
Using The Indian Child Welfare Act in a petition:
The Indian Child Welfare Act is little-used, but it can be the key to a successful petition to open a sealed file if you are adopted, and are some or all Native American. The ICWA was passed in 1978 to address congressional findings that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and….. that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
One section of the ICWA is of particular interest to adoptees. Section 1951b states “Upon the request of the adopted Indian child over the age of eighteen, the adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary shall disclose such information as may be necessary for the enrollment of an Indian child in the tribe in which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership. Where the documents relating to such child contain an affidavit from the biological parent or parents requesting anonymity, the Secretary shall certify to the Indian child’s tribe, where the information warrants, that the child’s parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such tribe.”
Essentially this section directs the State to give adult adoptees of Native American heritage who request it, their birth information, so that they may enroll in their tribes. The section does allow for birthparents to file a veto, but even then the adoptee is entitled to tribal notification so that they may process their tribal rights and privileges. You can read the entire ICWA on the Web.
There are a few problem areas with using the ICWA. Many adoptees are of enough Native American blood to qualify for enrollment in their tribes, but there is nothing documented that verifies that information. Before a judge will open a file under ICWA s/he will often demand some sort of proof that the adoptee is NA at all, proof that most adoptees will simply not have. But in other instances, the agency that handled the adoption, or the court file itself, will contain notations that you, the adoptee, do have NA ancestry. If you have received non-ID from a source that states this, include a copy with your court petition. You will also need to include a copy of the ICWA in order to make the judge’s work easier and predispose him/her to wanting to help you. If you have any information at all that you are even the smallest bit Native American, you should use the ICWA in your petition. Include affidavits from family members (adoptive and birth) who have told you that you have Native American blood, as well as any ‘official’ agency or other documents to support your claims. Remember that most tribes have small blood quantum requirements, and you should not feel guilty about using the ICWA. The intent of this law is to ensure that those of us who are entitled to tribal membership by birthright, have the *choice* to join our Native American communities.
What to Expect:
Your petition will have several possible outcomes. It can be denied outright, and you will receive nothing. Or, you might be denied identifying information, but receive censored copies of documents, or merely a summary of non-ID compiled from the documents themselves. The judge might also choose to appoint an intermediary. The intermediary will be given the file, and will conduct a search for your birthparents, usually the birthmother if you have not already found her. She will then be asked for permission to release identifying information to you. The irony is that in many cases, you still will not be given the court file or the documents contained within it, even if your birthparent(s) agrees to exchange identifying information. You will usually be required to pay for the intermediary service. In the case of the ICWA, sometimes the Court will appoint a tribal intermediary who will process your tribal enrollment in addition to seeking permission from your birthparent(s) to exchange identifying information. This is in contravention of the mandates of the Federal Act, but that does not seem to have stopped judges from doing it. Lastly, copies of parts of or your entire file might be turned over to you, unaltered.
This is a work in progress. Adoptees with experience in petitioning the court for their adoption file are encouraged to email me with the details of their experiences for use in this document.
This post was authored by Shea Grimm, sheag@oz.net, except where otherwise indicated. It may be copied and distributed freely, in whole or in part, as long as it is not sold, and as long as this notice is kept intact.
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