What You Should Know About Adoption in VA

In Virginia Adoption is “purely statutory.” Historically, these matters were handled within the family or by the village or tribal community. The need for laws regulating adoption arose as a result of estate and inheritance disputes regarding adopted children and disputes over child custody. Because adoption is purely statutory, the statutory requirements must be strictly followed.

There are three major classifications of adoptions: agency, step parent and parental placement. There are differences in procedure depending upon what kind of adoption is needed. The most common type, agency adoptions, is those proceedings involving agency placement of children. Proceedings where the custodial parent has married or re-married and the new spouse desires to adopt the child or children are referred to a step parent adoptions. The third category encompasses proceedings where the birth parents have placed their child or children directly with the prospective adoptive parents of their choice. There are also special provisions in the statues pertaining to the adoption of adults, interstate adoptions and international adoptions.

Agency cases involve placement of a child by a licensed child placement agency after termination of the parental rights of the birth parents. This is the most common type of adoption. A subset of the agency cases are those involving foster care placement. In these cases, foster parents are given the opportunity to adopt children who have been in their care and for whom the residual parental rights of the birth parents have been terminated. Many times, because of the bond which develops between foster care kids and their foster parents, those foster care parents are preferred as potential adoptive parents.

When a birth parent or adoptive parent of a child marries or re-marries and wishes the new spouse to become the legal parent of the child, this type of adoption can be very easy if the other parent consents to the proceeding.

When birth parents or a birth parent places the child or children with prospective adoptive parents, there is a two step procedure with proceedings in two separate courts. The birth parent must appear in the juvenile and domestic relations district court to execute formal consent to the adoption and the prospective adoptive parents must also appear in the same court to obtain legal custody of the child or children. The second part of the case is filed by the adoptive parents in the circuit court which is the court of original jurisdiction in adoption cases.

Close relative adoption is usually a subset of parental placement adoptions. This type of adoption can be extremely quick and easy with the consent of the birth parents after investigation and report by the department of social services. This type of case also requires proceedings in two courts.

Any natural person, except persons convicted of a sexually violent offense or an offense requiring registration as a pedophile or sex offender. Because Virginia law requires that the spouse of a prospective adoptive parent join in the petition for adoption, a prospective adoptive parent who is separated from his/her spouse but has not obtained a final divorce must obtain a final divorce before the adoption petition may be granted. The Virginia statutes make no distinction between married couples and an unmarried person, or between male and female unmarried individuals. However, the agency must do a home study and generally must recommend that the adoption be granted before any final order of adoption is entered. There are a few exceptions to this home study requirement, such as step parent adoptions.

We have had a number of people inquire about adopting the children of their girlfriend or boyfriend. While this situation is not specifically addressed in the statutes, these individuals are not “step parents” as defined in law. Because these individuals are not “step parents,” there is a question about the effect of the adoption on the rights of the custodial parent. At a minimum the agency and the court would have to consider whether or not the adoption would be in the best interests of the child or children. It is likely that the agency and the court might be concerned about the stability or lack thereof in a situation where someone not married to the biological custodial parent seeks to adopt. Clearly, it would be helpful if the legislature clarified whether or not this type of adoption should be approved and identified the procedure or steps to be applied in such cases.

The length of time it takes to process an adoption case depends upon the type of case and how long the child has lived with the prospective adoptive parents prior to the petition for adoption and whether they are related to the child. Unless there are special circumstances such that various requirements and consents maybe circumvented, it generally takes approximately ten months for the adoption process in an agency adoption.

A putative father is a man who may have fathered a child by a woman to whom he is/was not married; a court has not determined that he is the child’s father; he has not signed a written agreement acknowledging he is the child’s father; and he has not adopted the child. Virginia has established a confidential database to protect the rights of a putative father who desires to maintain rights to children he may father out of wedlock; it provides a uniform way for putative fathers to be notified in the event of proceedings to terminate the parental rights of putative fathers or for adoption. A putative father must register with the agency in order to insure that his rights are protected. Failure to register may result in termination of his rights and adoption of his putative children without further notice or hearing.

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The registry has no effect on adoption proceedings pertaining to legitimate children. With regard to illegitimate children, the registry provides a uniform means of notification of proceedings for adoption or termination of rights to those fathers who have registered a desire for such notification and further provides a streamlined means of facilitating entry of an adoption order in those cases where the putative father has not registered.

I handled my first step parent adoption using the Virginia Putative Father Registry in the summer of 2007 and was pleased and impressed at how rapidly I was able to process the adoption and obtain a final adoption decree using the registry to show that the putative father had failed to register. I was able to avoid the expenses of an order of publication to notify the putative father of the adoption proceedings. In fact, in that case, after obtaining a certificate of search from the registry sowing that the putative father was not registered, I was able to obtain entry of a final adoption order.

Once the final adoption order is entered by the court, the relationship between the child and the biological parents is terminated, as is the relationship between the child and the biological extended family. The termination of the relationship severs the rights, responsibilities and obligations of the biological parents toward the child and severs the obligations of the child toward the biological parents.

A key area of potential conflict is with regard to constitutional rights. Gender discrimination and denial of due process are two areas of litigation. Some people find the putative father registry to be controversial, discriminatory and a violation of due process. However, at this writing there are no cases successfully attacking the Virginia Putative father Registry. The best way to avoid a problem is to obtain consent, to obtain it voluntarily and with adequate counseling and knowledge of the consequences of the consent. Virginia law does provide that once six months pass after entry of the final adoption order, the order becomes final for all purposes and no attacks may be mounted against the adoption order.

Over the last decade, I have experienced an increase in my adoption practice resulting from adult step children desiring to be adopted by their step parents. This is the best present that the adult child could give to his step parent and usually represents the formalizing of the existing relationship within the family. This type of adoption is very simple, provided there is agreement among the parties. No home study or investigation is required. What is required is a petition for adoption signed under oath or penalty of perjury by the step parent, a copy of the birth record of the adult to be adopted, a copy of the marriage license of the step parent and birth parent, the written consent under oath of the adult child, a cover sheet for filing, a form reporting the adoption to the Bureau of Vital Records and a final adoption order. We usually have the birth parent who is married to the step parent join in the petition to show his/her consent to the proceedings. There is an attorney fee and a filing fee but no service fee in such cases.

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