Adoption Law

Adoption is defined as the legal process by which a person becomes a lawful member of a family different from their birth family. An order of adoption is ruled by the court, granting adoptive parents the same rights and responsibilities as parents whose children are born to them. The adopted child therefore receives the rights to inheritance, child support, having their name legally changed and an issuance of an amended birth certificate.

There are different types of adoption. They are classified as independent, agency, stepparent, relative placement and adult adoption. An independent adoption occurs when adoptive families and birth parents find each other on their own or through the assistance of an adoption intermediary. Agency adoptions are different in that they are handled through a child placement agency that is licensed by the State Department of Social Services. Stepparent adoptions are defined when a family adopting is a birth parent with a new spouse and if the other parent has relinquished rights. Adult adoption is the process whereupon a person eighteen years or older is legally adopted by one or more persons eighteen years or older. Last, relative placement adoption is when the birth parent(s) is still a minor, has died or is disabled, or the child has been removed due to abuse or neglect, and another relative assumes physical custody and responsibility for a child.

In the United States, two-thirds of all adoptions are agency adoptions.

Who may adopt? The U.S. Constitution does not outline fundamentally the right to adopt. Requirements for adoption are based on individual state law. Most states have modeled their adoption statues upon the Uniform Adoption Act. This act provides that any individual may adopt another individual in an effort to create the legal relationship of child and parent, subject to the adopting individual having reached adulthood. In regards to factors that may disqualify one who can adopt, differs by states. The Uniform Adoption Act does not prohibit the unmarried from adopting but some states do. Other states disqualify those suffering from physical or mental disabilities from adoption and/or have ‘reputability requirements’.

With reputability requirements, an individual cannot petition for adoption unless the court makes an official finding that the individual is acceptable as an adoptive parent. This requires that an investigatory report be submitted by a state agency qualifying the individual. Details such as the potential adoptive parent’s religion, social history, financial status, moral fitness, mental and physical fitness and criminal background are weighed.

In many states, gays and lesbians are restricted from adopting. Some jurisdictions consider sexual orientation as one factor when considering if a parent fits the acceptability requirement. Yet, out-of-state adoptions must be recognized per Adar v Smith. In the U.S. there are 270,000 children living with same-sex couples, one quarter of these or 65,000 have been adopted.

Before adoption can occur, the birth mother and birth father, (if he has properly established paternity) hold the primary right of consent to adoption of their child. Either one or both parents could have their rights terminated for reasons that include abandonment, failure to support the child, mental incompetence, or parental unfitness due to abuse or neglect. When neither parent is able to give consent, legal entities are given this responsibility. These entities include agencies that have custody of the child such as a person who has been given custody, a guardian, a court having jurisdiction over the child, a close relative of the child or a ‘next friend’ of the child who is a responsible adult appointed by the court.

Older children must give consent to their adoption. Most states age of consent is at 14. Each state’s law specifies when consent can be executed. Most states specify that a birth parent may execute consent to adoption any time after the birth of the child. Other states require a waiting period. The shortest waiting periods are 12 and 24 hours – the longest are 10 and 15 days. The right of a parent to revoke their consent is strictly limited and some states it is irrevocable.

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Franchise Law

Understanding franchise law starts with the understanding of the term franchise within the realm of business. Franchise business is defined, as a method a company uses to distribute its products or services through retail outlets owned by independent, third party operators. The independent operator does business using the marketing methods, trademarked goods and services and the goodwill and name recognition developed by the company.

For all of this, the independent operator does pay an initial fee and royalties to the owner of the franchise.

Franchise law was primarily established in 1979. The FTC Franchise Rule requires that covered franchisors supply a full disclosure of the information a prospective franchisee needs in order to make a rational decision about whether or not to invest. This disclosure must take place at the first personal contact where the subject of buying a franchise is discussed and at least 10 days prior to signing any contract with the franchisee or accepting any money.

In regards to state laws, the FTC doesn’t require franchisor or business opportunity sellers to register with it or any other government agency. However, many states do have registration rules requiring franchise sellers and registration. Some state laws are more stringent than others and most have adopted the FDD guidelines for their disclosure requirements.

In receiving your disclosure statement from the franchiser, you will obtain 1) a written disclosure statement or offering circular that sets forth certain information about the business to be franchised, and 2) proposed franchise agreement or contract.

A third attachment, the ‘earnings-claim’ statement may or may not be furnished by the franchiser. All documentation, including the earnings-claim statement is contained in a single form that is referred to as the “Uniform Franchise Offering Circular” (UFOC).

By law, this disclosure has to be written clearly and concisely and in narrative form. You should not need an attorney to interpret it.

Despite these requirements, this does not mean the offering has the approval or recommendation of the government or that the information is complete or accurate. The government does not weigh the risk factors of a franchise. It is on the shoulders of the buyer to confirm and verify the contents of the information.

Once a decision is made to purchase rights to a franchise, a franchise agreement is signed. This agreement legally binds both parties to the obligations and rights laid out in it. One should have an attorney review the agreement before signing as most agreements are one-sided and favor the franchiser. The agreement will outline provisions in great detail such as the obligations of the franchiser and franchisee, training and operational support, territory and exclusivity, renewal rights, investment cost, selling or transferring of the franchise, advertising policies, franchisee termination issues, settlements of disputes, operating practices and attorney fees.

Each agreement will be unique to each franchise and could depend on the type of business, which is involved.

Consulting an attorney is most advisable before purchasing a franchise as the laws can change. Recently, in 2007, under a Federal Trade Commission rule, all franchisors in the U.S. are now required to make disclosures to prospective franchisees using the FTC’s Franchise Disclosure Document (FDD) format. This rule replaced the FTC’s 1979 trade regulation rule on franchising.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: