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Crystal S. Stump, Esquire

www.wvadoptionlawyer.com
cstump@wvadoptionlawyer.com

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International Adoption

  More and more families in West Virginia are building their families through international adoption.  We see this every where we go... the library, the mall, gymnastics class ....  families created through international adoption.   FInalizing international adoptions or undertaking "readoption" is a large part of my adoption practice.   I undertake this work state-wide.  For those families whose child came home with an adoption decree from their child's birth country, the "readoption" work is completed under the international adoption statute.  For those families whose child came home under a guardianship or similar arrangement, the adoption is not final and will need to be finalized under the West Virginia domestic adoption statute.  As discussed in  Fees & Philosophy, it is my goal to undertake this work for my clients affordably and quickly. 


  • WHAT IS "READOPTION"?
    Unfamiliar to many, “readoption” is a common term among adoptive parents; but what does it really mean? Readoption refers to the process by which a state court reviews and recognizes the foreign adoption decree. 

   In countries like China, Guatemala, Russia, Vietnam and Ukraine the adoption process is generally completed in the country in which the child was born and that country issues an adoption decree. In West Virginia, the parent(s) file a “Petition for Recognition of Foreign Adoption Decree” requesting the Court to recognize the adoption decree issued by the country of their child’s birth. This process is the “readoption.” 

   In other countries, like Korea, Thailand, and India, the adoption is generally not completed or finalized in the country of the child’s birth. Rather, in those cases, the parents must file an adoption petition under the domestic adoption statute because there is no foreign adoption decree to be recognized; rather the adoption must be finalized in the U.S. under state law. This is a longer process with more requirements. 

   After experiencing the frustration of going through the “readoption” process for both of my boys in 2001 and 2003 under a domestic adoption statute, I drafted a bill and proposed West Virginia’s first international adoption statute which allows a West Virginia court to recognize the foreign adoption decree. The Governor agreed to sponsor the legislation and with the help of many adoptive families, we lobbied and secured passage of the bill in the 2003 legislative session. The new law, West Virginia Code § 48-22-901 et seq., went into effect in June 2003. Still, many people and lawyers do not understand or have not availed themselves of this simplified process. Nearly three years later, I still had Judges tell me how much better and efficient the process is under the new international adoption statute. Having undertaken my own adoptions and others as a part of my law practice on both sides of the coin, I believe this is a much better process.  Now, in 2011, most judges are well versed in this simplified process.

The Practicalities

Waiting period - You can file your petition for recognition of the foreign adoption decree as soon as the day your child arrives home. There is NO waiting requirement.

Timing of Entry of  the Adoption Order – My fastest time is one day and the longest was approximately two months. Typically, it takes about 7-10 days from filing for a Judge to enter the Adoption Order.

Name changes – You may accomplish any name change as a part of this process.

Birth date changes - Under certain circumstances, the date of your child’s birth may be changed.

Birth certificate - After the Adoption Order is entered, you may obtain a West Virginia birth certificate from the Department of Vital Statistics. The new birth certificate will reflect your child’s birth country as the place of birth.

Hearing – There is no hearing required under the statute. A judge should enter the Order recognizing the foreign adoption decree as soon as she has had an opportunity to review the petition and supporting documentation. I have only had two matters in which a judge required a hearing on the petition.

Original Documents – There is no requirement that your supporting documentation for your petition be originals. No one wants to part with originals of foreign adoption documents. I submit only copies and a certification that they are true copies of the document received in the adoption process. You must, however, submit copies of the foreign documents and English translations thereof.

Homestudies – There is no requirement under this law for an updated homestudy. You may, however, have an agreement with your agency or the placing country to obtain a follow-up homestudy. You need not wait, however, for the homestudy to begin the readoption process under West Virginia law.


WHY READOPT?

   Many people ask me, “Do I have to ‘readopt’?” Depending upon the type of visa which enabled your child to enter the United States, you may be required to readopt. Either way, I recommend everyone go through this legal process. The benefits are many. 
   
   If your child arrived in the United States on an IR-4 visa, you are required to readopt. If you do not, your child is not a citizen of the United States, according to our Government. If your child arrived in the United States on an IR-3 visa, you are not required to readopt, but you still may wish to readopt and, in fact, readoption for any internationally adopted child is recommended by most adoption professionals. 

   What is the difference between an IR-4 visa and an IR-3 visa? This can be confusing as we, as parents, have very different views of whether the foreign adoption of our child is “final” as contrasted with the view of the United States Department of State and federal law. A child whose adoption is “final” in their birth country is issued an IR-3 visa on which to enter the United States. A child whose adoption is not “final” in their birth country is issued an IR-4 visa. This gets very confusing to those of us who, for example, adopt a child from Guatemala where, under Guatemalan law, the adoption is final in Guatemala; however, unless BOTH parents personally saw the child prior to the adoption finalization in Guatemala, the child is issued an IR-4 visa and it is not “final” for United States citizenship purposes under federal law. 

   The distinction is – quite simply – was the adoption process completed in the birth country and did both parents personally see the child prior to the entry of the foreign adoption decree. If the answer is yes, an IR-3 visa is issued to the child. If the answer is no, an IR-4 visa is issued to the child. Typically, children born in China and Russia are issued IR-3 visas. If, however, only one parent travels and completes the adoption through a power of attorney, the child will enter the United States on an IR-4 visa. 

   Typically, children born in Guatemala, Korea, India, and Thailand are issued IR-4 visas. An important distinction amongst these countries is, however, the adoptions in Korea, India and Thailand are not actually finalized in the birth country – no foreign adoption decree is actually entered – and the child comes to the United States under a guardianship or similar arrangement. That child must be adopted under state law and, said adoption in West Virginia, must be accomplished under the domestic adoption statute. The International Adoption Statute of West Virginia acts solely to give full faith and credit to a foreign adoption decree. 

   Adoption professionals recommend that all internationally adopted children be “readopted” under state law. Why?

• First, readoption secures the recognition of a legal parent/child relationship under state law which eliminates relying on the ongoing validity of the adoption laws of a foreign country. What if a new regime came to power in your child’s birth country and declared all prior international adoptions were void? Highly unlikely, but still remotely possible.

* Second, a state-issued adoption decree will be recognized by every state in our nation and given full faith and credit. Further, the entry of an adoption order secures an order in English. Your foreign adoption decree will always need to be accompanied by an English translation. What if your only original foreign adoption decree is lost or destroyed?

• Third, you may secure a name change, if desired. You may also secure a changed birth date, if necessary and recommended by a physician.

• Fourth, you will secure a West Virginia birth certificate for your child. The birth certificate will recognize your child’s birth country as the place of birth. Can you imagine trying to obtain an original birth certificate from your child’s birth country every time you needed an original? Further, you may wish to bring your child back to his or her birth country. A West Virginia adoption decree would further confirm his or her status as your child under U.S. law. The West Virginia issued birth certificate will recognize your child’s birth country as the place of birth.

• Fifth, if your child arrives in the U.S. on an IR-4 visa, you will secure your child’s status as a citizen of the United States. Remember, if your child entered the United States on an IR-4 visa, federal regulations require you to adopt the child in your home state, regardless of whether any type of adoption might have occurred overseas. Do not jeopardize your child’s citizenship status.
 
• The ultimate reason to readopt is to ensure that your child is entitled to all of the rights that he or she should have as your child under both state and federal law.



U.S. Citizenship for Internationally Adopted Children 

    The Child Citizenship Act of 2000 (“the Act") amended the Immigration and Nationality Act to provide U.S. citizenship to certain foreign-born children – including adopted children – of U.S. citizens. The children must fall in one of these categories:
• Orphans with a full and final adoption abroad or adoption finalized in the U.S.,
• Biological or legitimate children,
• Certain children born out of wedlock to a mother who naturalizes, and
• Adopted children meeting the two-year custody requirement. 

   The Act was an important change in the nationality laws of the United States as it authorized the automatic acquisition of citizenship and protected the adopted children of U.S. citizens from deportation. The Act became effective in February 2001, but was rather slow in implementation. In January 2004, the USCIS changed its processing and issued updates to streamline the process. Prior to that date, a Resident Alien card or green card was issued for the child and the parents had to apply for a Certificate of Citizenship for their child which took months to years to receive. 

   The Act also caused a great deal of confusion as to whether or not all internationally adopted children are automatically granted United States citizenship. The simple answer now is a child who enters the U.S. on an IR-3 visa is automatically granted citizenship. A child who enters the U.S. on an IR-4 visa is not automatically granted U.S. citizenship without finalization or recognition of the foreign adoption decree under state law.  The IR-3 versus IR-4 visa distinction is important but confusing. Simply put, if you (and your spouse, if applicable) personally saw your child prior to the entry of the foreign adoption decree, your child will be issued an IR-3 visa.  If not, she will be issued an IR-4 visa.  SImilarly, if there is no foreign adoption decree, your child will be issued an IR-4 visa.

   As of January 20, 2004, when a child enters the United States on an IR-3 visa, the USCIS will mail a Certificate of Citizenship directly to his or her home within 45 days. The Certificate of Citizenship will be issued in the child’s name indicated on his visa, which may or may not be the name you have chosen for your child. If it is not, you will want to obtain a new Certificate of Citizenship in your child’s name which you have chosen. This name will need to be legally changed and can be accomplished through filing a Petition for Recognition of Foreign Adoption Decree pursuant to West Virginia’s international adoption statute. Once the name change is legally resolved, you can file Form N-565 with the USCIS for a revised Certificate of Citizenship. The fee for the certificate is currently $220.00 (8/06). 

   This automatic issuance of a Certificate of Citizenship will not occur for children entering the U.S. on an IR-4 visa or for those who entered the U.S. prior to January 20, 2004. If your child enters the United States on an IR-4 visa or if your child entered the U.S. prior to January 20, 2004, you must apply for a Certificate of Citizenship in order to receive one. 

   If your child entered the United States on an IR-4 visa, you will need to readopt your child under West Virginia law before a Certificate of Citizenship can be issued by USCIS. Once the state adoption order is entered, you may apply for a Certificate of Citizenship using form N-600.  The current fee  (as of 11/11 for said certificate is $550.00. 

   There are only two documents which constitute tangible evidence of citizenship: a Certificate of Citizenship or a U.S. passport. A state-issued birth certificate is not evidence of citizenship. Yes, just when you think the adoption paper chase is over, there are more fees and more forms. Now you may be thinking, “Do I really need to send more of my money to the INS/USCIS?” or even “ Do I have to obtain proof of citizenship for my child?” The answer is no, it is not required. Most adoption professionals and immigration attorneys, however, recommend obtaining either or both the Certificate of Citizenship and the U.S. passport. My husband and I personally decided to take the better safe than sorry route and obtained both for our internationally adopted children. 

   Here are some things to consider in making your decision about obtaining proof of citizenship:

• If you don’t have tangible evidence of citizenship and need to prove it, you will ultimately prevail that your child has the status of a citizen under the law but you will still be faced with persuading the questioning authority by explaining the Child Citizenship Act and producing supporting documents.
 • Passports expire.
 • Certificates of Citizenship do not expire.
 • Passports are issued by the State Department.
 • Certificates of Citizenship are issued by the USCIS.
 • For IR-4 visa holders, the only way currently to get the USCIS to change an adopted child’s status from resident alien to citizen within the USCIS database is to apply for and receive a Certificate of Citizenship.
 • The Charleston, WV social security office still requires (at least as of 1/06) the Certificate of Citizenship before it will change your child’s designation from resident alien to citizen in the Social Security Administration records.