retroactively speaking
My first attempt to access my adoption records was met with, “Sorry, no. It is against Florida Law (F.S. 63.162) to disclose identifying information without a court order or written consent of all parties involved.” When writing Storked!, I did a deep dive into the history of Florida’s adoption laws. I wanted to know more about F.S. 63.162, only to discover that the statute didn’t exist when my adoption was finalized. The State of Florida sealed my documents using an earlier statute (63.181) which dictated the confidentiality of records, not of identifying information. Because adoptees had unrestricted access to their original birth certificate until 1977, this confidentiality of records is presumed to protect adoption records from the public eye and not from the adoptee. Legally, it seems I should have full access to my records.
The first writing of Florida Statute 63.162 further validates my assumption of access by using the following language: “Except as authorized in writing by the adoptive parent or the adopted child, if fourteen or more years of age, or upon order of the court for good cause shown in exceptional cases, no person is required to disclose the name or identity of either an adoptive parent or adopted child.” There is no mention of the birth parent. Why? I learned that the system at the time of my adoption favored adoptive parents and their fears of a birth parent returning to reclaim their relinquished child. Birth parents had no rights. How do I know this? Because birth parent confidentiality wasn’t explicitly protected until 1978, five years after my adoption was finalized.
Below is an excerpt from Storked! and my thoughts on Florida’s retroactively applied adoption law:
I realized years later that I was bound by the enacted law at the time of my request for information and not the statute under which Florida sealed my adoption. Full disclosure, I am not an attorney. The fact that adoption statutes appear to be applied retroactively doesn’t make sense, and I couldn’t find anything in the Florida Statutes that explicitly states adoption laws are retroactive. According to the United States Constitution, retroactive laws, referred to as ex post facto laws, are forbidden in criminal cases at the state and federal levels. Meaning that I couldn’t be penalized for a legal action committed five years ago that has since been criminalized. Civil cases are fuzzier, but it’s the punitive nature of ex post facto laws that make them unconstitutional. In the case of adoption, it is not a legal process that happens over time but an action that occurs at one point in time. By applying adoption law retroactively, a child adopted in March 1973, like me, received no benefits from changes in adoption statutes over time but was penalized by added restrictions.
When I made my first request for information in 1997, the added benefits in the current adoption statute not included at the time of my adoption were:
● Furnishing of all non-identifying information prior to the finalization of the adoption (1978 and 1982).
● Duty to inform birth parents prior to a relinquishment and adoptive parents prior to the adoption of the existence of the state reunion registry (1992).
And the added restrictions were:
● Inclusion of the original birth certificate as part of the adoption record (1977).
● Protection of natural parents’ confidentiality (1978).
● Written authorization from birth parents prior to the release of their identity (1980).
● Payment by adoptees for release of their adoption information (1982).
I represent an adoptee who received the least number of benefits and the most amount of restrictions from the Florida Adoption Statute. The onus fell to me to understand adoptee rights and Florida law.
