McMahon, McMahon & Lentz - Family Law

Post Adoption Contact Agreement
By: Erin C. Lentz, Esquire

On October 27, 2011, Governor Edward Rendell signed Senate Bill 1360, Act 101 of 2010, which amends Pennsylvania’s Adoption laws to allow adopting parents and birth relatives to enter into an agreement for continuing contact or communication that became effective on April 27, 2011. This contact or communication can include: letters, cards, emails, photographs, telephone calls, text messages, social media connections, and supervised or unsupervised visitation. The boundaries of the contact or communication are to be written in an agreement that is referred to as a “Post Adoption Contact Agreement” (PACA). This is also commonly referred to as an “Open Adoption” meaning that the birth relatives will still be allowed to maintain a relationship with a child who is being adopted. Prior to this amendment, some adopting parents and birth relatives maintained a connection but this law allows for a legally enforceable agreement to be monitored by the Court.

Who can be a party to a PACA
Adopting parents and birth relative can voluntarily agree to enter into a written PACA, and a minor child who is age twelve or older, must also provide consent. Biological parents are not the only relatives entitled to enter into such an Agreement. The amendments allow for all “birth relatives” to enter into a PACA who are defined as a “parent, grandparent, stepparent, sibling, uncle, or aunt of the child’s birth family, whether the relationship is by blood, marriage or adoption.” In addition, “prospective adoptive parents” may be parties to the Agreement, even though the adoption may not be finalized. Accordingly, a PACA can be entered into by the parties prior to the termination of parental rights, and a final adoption.

Notice of the Right to PACA
It is important that notice of the right to enter into a PACA is given to individuals who are either losing their parental rights or becoming adoptive parents. In addition, notice must be given to a child “who can be reasonably expected to understand.” Of course, the exact age, maturity, or intelligence of a child “who can be reasonably expected to understand” varies on a case-by-case basis. However, there is no requirement that all birth relatives must be provided with such notice. This means that a grandparent, stepparent, sibling, uncle, or aunt of the child’s birth family, whether the relationship is by blood, marriage or adoption may not be given notice about the possibility of a PACA, even though these birth relatives can be parties to such an agreement.

Court Approval Required – Determining Best Interests of the Child
The Court must approve the PACA, after determining that it is in the best interests of the child. The factors used to determine whether such an agreement is in the best interest of the child, include:

	The length of time that the child has been under the actual care, custody, and control of a person other than a birth parent and the circumstance relating thereto.
	The interaction and interrelationship of the child with birth relatives and other persons who routinely interact with the birth relatives and may significantly affect the child’s best interests.
	The adjustment to the child’s home, school, and community.
	The willingness and ability of the birth relative to respect and appreciate the bond between the child and prospective adoptive parent.
	The willingness and ability of the prospective adoptive parent to respect and appreciate the bond between the child and birth relative.

The Court may require an evidentiary hearing to ensure that the PACA is in the best interests of the child, or a Motion with the appropriate documentation may suffice. In addition, the parties to a PACA must submit notarized affidavits that affirm that the Agreement is voluntary and not the produce of fraud, duress or coercion.

Enforceability/Modification/Duration of the Agreement
Any party to the PACA can seek enforcement by filing an action in the court that finalized the adoption. The only legal remedy that may be sought by an enforcement action is specific performance. However, only an adoptive parent or child who is twelve years of age or older may seek to modify the PACA. A birth relative cannot seek to modify the PACA. If a Petition to Modify the PACA is filed, then a Court must find that such modification serves the needs, welfare, and best interests of the child by clear and convincing evidence. A PACA terminates on the date the child reaches eighteen years of age, unless provided for otherwise by the Agreement or Court.