I am researching the legal right to annul your own adoption, including what that means, what such a right should look like, and what issues we need to consider in securing that right. As I develop the historical and legal framework, I will add resources and continue to discuss the issue with adopted people as well as with birthparents and adoptive parents. My focus, however, will always be on the rights of all adopted people to annul their own adoptions.
Two short videos give a broad overview of adoption annulments generally, leading to an answer to the question:should there be a right to annul your own adoption?
Adoptions and Annulments Part 1: A Brief History
A closed-captioned version is available on YouTube, and a transcript is also below.
Adoptions and Annulments Part 2: Securing a Right Today
A closed-caption version is available on YouTube. A transcript is available here.
Part 1 Transcript
(alt-text is provided for each of the images below, and a closed-captioned version is available on YouTube)
I’m an adoptee rights lawyer, and I get a fair share of questions about annulling an adoption. These questions are typically from adult adopted people who want to vacate or annul their own adoption. My typical answer is that it’s possible but extremely difficult to annul your adoption. I’ve been successful in one case and that case took a huge emotional and financial toll on my client. But it’s something I continue to think about and research, to the extent now that I believe it is time to work to establish a right of an adult adopted person to annul their own adoption, consistent with their best interests.
Adoption annulment statutes have been around for more than a century. This is a statute from 1917 in Minnesota, which was considered a ground-breaking modern adoption law at the time. This law, which became fairly typical across the country over the decades, was on the books until the early 1960s.
As you can see there were limitations on annulment back then, as has always been the case, including a time limit on the availability to seek annulment. But, as you can see, annulments are almost always focused on the adoptive parents, particularly parents who believe they got a raw deal in the transaction.
Here, in 1917, was a list of some of the common raw deals, all related to undisclosed defects in an adopted person. If within five years the adopted child develops epilepsy, insanity, venereal disease, or feeble-mindedness—which was a broad term that grew out of the eugenics movement—then the adoptive parents could annul the adoption.
It also had to be a condition they didn’t know about and didn’t discover until after the adoption.
But if they could prove it, the court would annul the adoption and give the child back to the state.
These statutes still exist.
In California, for instance, current law allows annulment if the adoptive parent discovers evidence of an undisclosed developmental disability or mental illness.
Kentucky goes one step further and still enshrines an element of eugenics in its law today. Enacted in the 1950s, Kentucky’s annulment statute relates solely to ethnicity and race.
If an adoptive parent discovers “definite traits of ethnological ancestry different from those of the adoptive parents.”
—and they had no knowledge of it before the adoption—-
then the court may enter a decree of annulment. That is, if you are a white adoptive parent and your child is perceived later as Black, an adoptee of color, or an Indigenous child, you have a legal right to annul that adoption and give the kid back.
These provisions were not limited to laws either.
Many agencies had their own return policies, some extremely broad. This is one from the Catholic Home Bureau in New York. It’s from one of my friends who is a New York adoptee rights activist. The Catholic Home Bureau had a contractual policy that stated “the family Is at liberty to return the child to the Catholic Home Bureau for any reason the family decides that it ought not to keep the child.” Such a return policy was unheard of in the 1960s for a car or any other marketable item—except for adopted people.
So that’s a very brief overview. Of course today, even though annulment laws are more strict and often have shorter time limits, they still exist in some form. But importantly, an underground system of annulment is thriving. That is, “rehoming”—or what is technically called “unregulated custody transfers”—is a way to secure extrajudicial annulments, especially for adoptive parents who feel—like adoptive parents 100 years ago—that they got a raw deal.
Rehoming is legal in many states, it has created a secondary adoption market, and it happens in anywhere from three to ten percent of all adoptions, though the stats likely underrepresent the reality. Importantly, though, rehoming happens at a much higher and alarming rate for intercountry adoptees, Black adoptees, adoptees of color, and older and disabled adoptees. That is, the ghost of eugenics still follows us.
So this is my question, which I’ll explore in more detail in Part 2.
If there has always been a formal or informal right of return policy for adoptive parents, with remedies to fix what they believe was a raw deal, what about an adult adoptee who got a raw deal?
Should there be a right to annul your own adoption?
After all, at every chance courts remind us that the best interest of the adoptee is the paramount consideration in all adoptions? So, what if that best interest—your best interest— is to annul the adoption? I’ll talk about that next, including what such a right to annul could look like.
Part 2 Transcript
In the first part of this series I described the history of annulments and adoption, but that was generally from the perspective of adoptive parents who wished to cancel an adoption and give a kid back to the state—or give the adopted person informally to somebody else.
But in the end I posed two questions to highlight a different perspective, our perspective. That is, people like me, an adopted person. I asked:
If there has always been a formal or informal right of return policy for adoptive parents, with remedies to fix what they believe was a raw deal, what about an adult adoptee who got a raw deal?
Should there be a right to annul your own adoption? Yes, of course.
And it turns out that a number of states have also answered that question with a Yes. For decades, at least two states recognized a right for an adult adopted person to void their adoption, and a number of other states had provisions that would allow vacating or annulling an adoption under certain circumstances.
Maine, for instance, had for many years a provision that allowed two or more persons for good cause shown to seek and obtain the annulment of an adoption. Other states had general provisions that allowed vacation or annulment by anyone, though the law usually mandated strict time periods and was typically only available while the adoptee was a child.
West Virginia and Vermont, however, had much broader and nearly identical provisions for decades. West Virginia, which for nearly one hundred years recognized the right to void your own adoption, had a law that was simple, though it required the adopted person to act as soon after they became an adult. The law in West Virginia for years stated that:
You would think that this right—a right to end your own adoption—-is outdated and maybe a throwback to a different time. That is, we’re not going back there again. That’s wrong. It’s not outdated. It’s necessary today to restore autonomy—and recently, West Virginia legislators have introduced bills that would recognize that right to autonomy.
The bill, first introduced in 2019, would reinstate the right to annul your own adoption. It provides that “Any adult resident who has been previously adopted by order of a West Virginia court may petition a circuit court for a court order annulling the adoption. Upon granting the petition by the court, all legal rights and privileges granted pursuant to state law by the adoption are null and void.”
Annulment or vacating an adoption is really about one thing. It provides genuine autonomy to an adopted person, an autonomy that had not existed during their childhood when the adoption was facilitated and determined to be in their best interests—but almost always without their direct input. Today, however, the right to annul or vacate an adoption would provide needed autonomy to people whose best interests as adults means terminating an adoption that never worked for them or that they no longer want.
That autonomy exists today, but we call it something else: we call it adult adoption.
Adult adoption, however, is not the same as annulment, though it does prove that adoptees are trusted as adults with their own decisions over who may be their parents. That is, an adult adopted person—or any adult—can be adopted by another adult, and it only requires the consent of both people. This has been done for millenia, going back to ancient Rome, largely for purposes of inheritance but in more modern times for purposes of arranging a family that fits who you are and how you identify.
While there are a few limitations in some states with adult adoptions, usually concerning the age difference between the people involved, all it takes in most states is the consent of both the adoptee and the proposed adopter. After all, everyone in this legal relationship is an adult and we all presume that they know what is in their own best interests. Don’t we?
So, if you can already legally rearrange you own parentage through an adult adoption—which provides a semblance of autonomy—what’s the difference between that and ending an adoption on your own? There’s not much difference. One—adult adoption—creates a new parent and terminates the prior parental relationship. The other—annulment—terminates the adoption and leaves the adoptee completely autonomous, without legal parents. That is, the adoption no longer exists.
Annulling your own adoption is not without its issues, which we can resolve—and if we are serious about reinstating or securing a right that we should have as adults, we need to answer a few questions to get there. In fact, even if a bill like the one in West Virginia became law tomorrow, we’d still need to figure out a number of things.
These include restoration rights, which basically has two issues: One, does annulment restore your own original birth record? That’s easy to answer: yes, this is already the case in current law in most states—that is, annulment of adoptions leads to the restoration of the prior original birth record.
The second restoration right is more complicated and involves the complexity of human relationships. That is, what prior parental rights, if any, are restored through the annulment or vacation of an adoption. That is not an easy answer and it will need to be sussed out. Same goes for intercountry adoptees whose adoptions were critical to make them US citizens. How would annulment affect that citizenship and what do we need to watch out for?
These and likely other questions, however, are issues, not barriers. In other words, provided we can establish a right to annul your own adoption, as a simple procedure, then we are certainly able as adults to work out the more complex cases that may arise in certain requested situations.
I believe very strongly there should be a right to annul or vacate your own adoption, and that right should be simple and straightforward with one result: it would end an adoption and restore the original birth record if so requested. If the adoptee wants to annul the adoption and restore a birth record, that is a simple annulment, and should be easily accomplished through simplified court proceedings.
Other issues, such as inheritance rights, parental rights, citizenship if affected, should be considered as a separate part of an annulment or court proceeding, but only if needed and at the request of the adopted person. That is, if they want to restore additional rights or determine new legal relationships, then those requests may require additional proceedings and may at times involve notifying other people who would be affected by it. These would be the more complicated annulments, but it is up to the adopted person to raise these issues and pursue them if they choose to do so.
This is both an easy issue and a hard issue. It is easy because annulments of adoptions once existed for adopted people—while at the same time, for adoptive parents as I discussed in my prior video, annulments have almost always existed, even to this day, both formally and informally.
So it’s not a stretch to reestablish a right we once had—or at least should have today. It is time to work toward recognition of the full autonomy of adopted people and to support it as legal autonomy to be free of an unwanted adoption. Will it be something that most adopted people pursue? No, but it would be available to those who need it.