UPDATE - Transition Cases
February 29th, 2008
As you know, the United States is currently in the process of implementing the Hague Convention on Intercountry Adoption (the Hague), which is set to be fully implemented on April 1, 2008. This treaty will greatly impact all international adoptions.
This week, our agency received an update from the Department of State regarding transition cases. As you may read below, the State Department is requiring all families wishing to not fall under the new Hague requirements to provide our agency with a copy of any written formal documentation stating your intentions to adopt before April 1. Examples of this may include any application you may be required to submit to your central authority in order to be approved to adopt internationally, confirmation that your home study is either complete or in process in your convention country, etc. Families who do not provide this documentation prior to April 1 will then fall under the new Hague guidelines and will not be considered a transition case.
Below is the text provided to us by the Department of State regarding this matter. If you have any further questions, do not hesitate to contact Mary Martin.
Q: What does "initiated the adoption process . . . with the filing of an appropriate application" mean in outgoing (emigrating) cases?
A: The Department considers the phrase "initiate the adoption process in their country of residence with the filing of an appropriate application" in the context of the IAA's transition rule for outgoing cases to mean any formal, written effort undertaken before April 1, 2008 to initiate the adoption process in the country of residence. Examples of such formal, written efforts include submitting a written request to start the adoption process to the central authority, to the responsible government office, or to any other entity delegated the authority to receive such requests; submitting a preliminary application for initial screening of prospective adoptive parent eligibility to adopt to the appropriate entity authorized to conduct home studies; or other similar efforts to commence an adoption process with appropriate entities or authorities in the country of origin. Intercountry adoption cases between the United States and other Convention countries initiated after April 1, 2008, will be covered by the Hague Adoption Convention and subject to U.S. Hague adoption rules. The transition rule of the IAA is not elective; if the case meets the criteria, the new U.S. Hague rules do not apply. If prospective adoptive parents prefer to have their case proceed under the U.S. Hague rules, they may withdraw their application and initiate their national adoption process over again, de novo, on or after April 1, 2008.
Comment: As noted in the general information on transition cases, the Intercountry Adoption Act (the IAA) anticipated the need to define how to handle intercountry adoption cases that were begun but not completed before the Convention enters into force with the respect to the United States and that involve parents residing in countries where the Convention has already entered into force. In accordance with Section 505(b)(2) of the IAA, the Convention, the IAA and its implementing regulations will not apply in such outgoing cases provided the prospective adoptive parents "initiated the adoption process in their country of residence with the filing of an appropriate applicationÂ…" before the Convention enters into force with respect to the United States on April 1, 2008. This guidance addresses the meaning of "appropriate application" in the context of the IAA's transition rule.
This guidance addresses only when a case may be subject to the U.S. transition rule. It does not address what the country of residence may consider to be an appropriate application for its own domestic intercountry adoption approval purposes or processes. Prospective adoptive parents are subject to the requirements and procedures of their country of residence for obtaining approval for intercountry adoption from the United States; some countries have identified an alternative process for adopting from the United States pending entry into force of the Convention here, while others have not.
Prospective adoptive parents may want to provide their American adoption service provider with a copy of the formal, written effort they undertook in their country of residence to initiate the adoption process. The American adoption service provider should retain this documentation in the case file as evidence supporting the position that the case is a transition case. The U.S. court in which the adoption case is brought may need access to this documentation to verify that the prospective adoptive parents made an "appropriate application" and that therefore the case is not subject to the Convention, the IAA, and its implementing regulations.
