I have been working with folks on adoption matters for some time now. One thing that I have learned that has benefited several of my clients is that gaining custody of a child that my clients are seeking to adopt is a more sound approach than attempting to adopt the child immediately.

One specific reason to do this is when my clients’ have no legal rights to the child in the first place, which occurs when a parent, often the mother, is unable to care for a child for a variety of reasons and asks friends to care for the child. In this situation, it is much more common for the parent to be willing to allow the friends to have legal custody of the child and the parent to maintain some rights to the child than for the parent to relinquish all her rights and consent to an adoption.

Even if I believe my clients have grounds to terminate the parent’s rights and move forward with adoption, I encourage them to consider custody by agreement first if it is an option. I do this if it seems likely that the TPR is going to be contested. Once you open the TPR and adoption case, there is a potential for family members of the mother, potential father, and his family to get involved, which makes the TPR case much more complicated and much more costly.

Once my clients have custody and seek TPR and adoption in the future (if TPR grounds remain or if TPR grounds occur during the period after the time the clients gained custody), they will most likely continue to maintain legal custody if the TPR is unsuccessful. Also, custody by agreement is substantially less cost-prohibitive than a contested TPR trial, and it gets you to almost what you want as the custodian of the child.