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.
