8616.5
. (a) The Legislature finds and declares that some adoptive
children may benefit from either direct or indirect contact with
birth relatives, including the birth parent or parents or an Indian
tribe, after being adopted. Postadoption contact agreements are
intended to ensure children of an achievable level of continuing
contact when contact is beneficial to the children and the agreements
are voluntarily entered into by birth relatives, including the birth
parent or parents or an Indian tribe, and adoptive parents. Nothing
in this section requires all of the listed parties to participate in
the development of a postadoption contact agreement in order for the
agreement to be entered into.
(b) (1) Nothing in the adoption laws of this state shall be
construed to prevent the adopting parent or parents, the birth
relatives, including the birth parent or parents or an Indian tribe,
and the child from voluntarily entering into a written agreement to
permit continuing contact between the birth relatives, including the
birth parent or parents or an Indian tribe, and the child if the
agreement is found by the court to have been entered into voluntarily
and to be in the best interests of the child at the time the
adoption petition is granted.
(2) The terms of any postadoption contact agreement executed under
this section shall be limited to, but need not include, all of the
following:
(A) Provisions for visitation between the child and a birth parent
or parents and other birth relatives, including siblings, and the
child's Indian tribe if the case is governed by the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(B) Provisions for future contact between a birth parent or
parents or other birth relatives, including siblings, or both, and
the child or an adoptive parent, or both, and in cases governed by
the Indian Child Welfare Act, the child's Indian tribe.
(C) Provisions for the sharing of information about the child in
the future.
(3) The terms of any postadoption contact agreement with birth
relatives other than the child's birth parent or parents shall be
limited to the sharing of information about the child, unless the
child has a preexisting relationship with the birth relative.
(c) At the time an adoption decree is entered pursuant to a
petition filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000,
the court entering the decree may grant postadoption privileges if
an agreement for those privileges has been entered into, including
agreements entered into pursuant to subdivision (f) of Section 8620.
The hearing to grant the adoption petition and issue an order of
adoption may be continued as necessary to permit parties who are in
the process of negotiating a postadoption agreement to reach a final
agreement.
(d) The child who is the subject of the adoption petition shall be
considered a party to the postadoption contact agreement. The
written consent to the terms and conditions of the postadoption
contact agreement and any subsequent modifications of the agreement
by a child who is 12 years of age or older is a necessary condition
to the granting of privileges regarding visitation, contact, or
sharing of information about the child, unless the court finds by a
preponderance of the evidence that the agreement, as written, is in
the best interests of the child. Any child who has been found to come
within Section 300 of the Welfare and Institutions Code or who is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code shall be
represented by an attorney for purposes of consent to the
postadoption contact agreement.
(e) A postadoption contact agreement shall contain the following
warnings in bold type:
(1) After the adoption petition has been granted by the court, the
adoption cannot be set aside due to the failure of an adopting
parent, a birth parent, a birth relative, an Indian tribe, or the
child to follow the terms of this agreement or a later change to this
agreement.
(2) A disagreement between the parties or litigation brought to
enforce or modify the agreement shall not affect the validity of the
adoption and shall not serve as a basis for orders affecting the
custody of the child.
(3) A court will not act on a petition to change or enforce this
agreement unless the petitioner has participated, or attempted to
participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute.
(f) Upon the granting of the adoption petition and the issuing of
the order of adoption of a child who is a dependent of the juvenile
court, juvenile court dependency jurisdiction shall be terminated.
Enforcement of the postadoption contact agreement shall be under the
continuing jurisdiction of the court granting the petition of
adoption. The court may not order compliance with the agreement
absent a finding that the party seeking the enforcement participated,
or attempted to participate, in good faith in mediation or other
appropriate dispute resolution proceedings regarding the conflict,
prior to the filing of the enforcement action, and that the
enforcement is in the best interests of the child. Documentary
evidence or offers of proof may serve as the basis for the court's
decision regarding enforcement. No testimony or evidentiary hearing
shall be required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(g) The court may not award monetary damages as a result of the
filing of the civil action pursuant to subdivision (e) of this
section.
(h) A postadoption contact agreement may be modified or terminated
only if either of the following occurs:
(1) All parties, including the child if the child is 12 years of
age or older at the time of the requested termination or
modification, have signed a modified postadoption contact agreement
and the agreement is filed with the court that granted the petition
of adoption.
(2) The court finds all of the following:
(A) The termination or modification is necessary to serve the best
interests of the child.
(B) There has been a substantial change of circumstances since the
original agreement was executed and approved by the court.
(C) The party seeking the termination or modification has
participated, or attempted to participate, in good faith in mediation
or other appropriate dispute resolution proceedings prior to seeking
court approval of the proposed termination or modification.
Documentary evidence or offers of proof may serve as the basis for
the court's decision. No testimony or evidentiary hearing shall be
required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(i) All costs and fees of mediation or other appropriate dispute
resolution proceedings shall be borne by each party, excluding the
child. All costs and fees of litigation shall be borne by the party
filing the action to modify or enforce the agreement when no party
has been found by the court as failing to comply with an existing
postadoption contact agreement. Otherwise, a party, other than the
child, found by the court as failing to comply without good cause
with an existing agreement shall bear all the costs and fees of
litigation.
(j) The Judicial Council shall adopt rules of court and forms for
motions to enforce, terminate, or modify postadoption contact
agreements.
(k) The court may not set aside a decree of adoption, rescind a
relinquishment, or modify an order to terminate parental rights or
any other prior court order because of the failure of a birth parent,
adoptive parent, birth relative, an Indian tribe, or the child to
comply with any or all of the original terms of, or subsequent
modifications to, the postadoption contact agreement, except as
follows:
(1) Prior to issuing the order of adoption, in an adoption
involving an Indian child, the court may, upon a petition of the
birth parent, birth relative, or an Indian tribe, order the parties
to engage in family mediation services for the purpose of reaching a
postadoption contact agreement if the prospective adoptive parent
fails to negotiate in good faith to enter into a postadoption contact
agreement, after having agreed to enter into negotiations, provided
that the failure of the parties to reach an agreement is not in and
of itself proof of bad faith.
(2) Prior to issuing the order of adoption, if the parties fail to
negotiate in good faith to enter into a postadoption contact
agreement during the negotiations entered into pursuant to and in
accordance with paragraph (1), the court may modify prior orders or
issue new orders as necessary to ensure the best interest of the
Indian child is met, including, but not limited to, requiring parties
to engage in further family mediation services for the purpose of
reaching a postadoption contact agreement, initiating guardianship
proceeding in lieu of adoption, or authorizing a change of adoptive
placement for the child.