ADOPTION IN VIRGINIA
Leigh S. Gettier, Attorney at Law
Adoption in Virginia is a strictly statutory process which is stated in Title 63.2, Chapter 12 of the Virginia Code. Other jurisdictions recognize a common law or equitable basis for adoption, but in Virginia the statutory scheme must be followed. Adoptions that occur in other states are recognized in Virginia under the Full Faith and Credit Clause of Article IV of the U.S. Constitution.
In Chapter 12 of Title 63.2 Virginia recognizes five types of adoptions: 1) agency adoptions, where a licensed child-placing agency such as a local Department of Social Services or private agency, for instance Catholic Charities, facilitates an adoption; 2) parental placement adoptions; 3) stepparent adoptions; 4) close relative adoptions; and 5) adult adoptions of persons at least 18 years old.
Other states’ or countries’ prior custody, guardianship and adoption order(s) may need to be included with Virginia adoption petitions. This article cannot cover every conceivable circumstance. Anyone wishing to pursue adoption in Virginia should read Title 63.2, Chapter 12 and apply, as best they can, the Virginia Code to their particular set of facts.
The Virginia statutes outline a two-part procedure. The first part takes place in the Juvenile and Domestic Relations District Court. In most cases, this is where the birth parents will consent to the adoption and their parental rights will be terminated. This can be a voluntary termination, as in the case of an entrustment agreement, or it can be involuntary.
A birth parent’s voluntary consent to adoption can be revoked by the birth parent within 7 days. The revocation must be in writing and filed with the JDR court. To expedite the adoption, the 7-day reconsideration period can be waived by the biological parent if the child is at least 10 days old and the parent has received independent legal counseling about the effects of waiver. When a parent refuses to consent to the adoption and the JDR court believes that the refusal is not in the best interest of the child, the JDR court may involuntarily terminate that parent’s parental rights.
At the first hearing the JDR court may grant temporary custody of the child to an agency or to the prospective adoptive parents. In most cases, a home study of the prospective adoptive parents is required. As part of the home study, a child placing agency investigates the background of all the persons in the home. The JDR court may also set a (typically 12-month) review hearing to ensure that any remaining issues concerning custody of the child may be heard in the JDR court even if the adoption fails for some reason in Circuit court.
The second part involves the Circuit court. A Petition for Adoption is filed. Most agency placement adoptions, some stepparent adoptions, some close relative adoptions, and foreign adoptions also require a Circuit Court Order of Reference. Under an Order of Reference, a child-placing agency has 60 days to complete an investigation of the placement and file a report with the court. If the agency does not complete its investigation within 60 days, the court may grant petitioners’ motion for entry of a final order of adoption without the report.
Parental placement adoptions may require an Interlocutory Order entered by the Circuit court. This order requires a child placing agency to make three home visits with no fewer than 90 days between the first and third visits and file a report of visitation with the court. The Interlocutory Order also grants the prospective adoptive parents most of the same legal rights as a final order of adoption, while reserving some rights to the court, the supervising child placing agency and in some cases the biological parents.
Once the Circuit court has entered a final order of adoption and the necessary state reporting forms are completed, the adoption is final. The final order of adoption also terminates the rights and obligations of the birth parents (if that has not already occurred) and makes the child for all intents and purposes the child of the adoptive parents.
Termination of parental rights also terminates the legal rights of the child’s prior biological relatives whose legal rights “flow through the terminated parent.” This can be an unintended consequence of termination of parental rights. For instance, if the child’s biological grandparents, aunts or uncles of the parents whose rights have been terminated wish to petition for custody, they may not be able to do so once the adoption is final.
There are many different types of adoption in Virginia, but only two types of people can be adopted. The statutes largely deal with minor children whose birth parents have either consented, had their parental rights involuntarily terminated, or are deceased. Any child who is 14 or older must consent to their own adoption and to any name change. However, adults 18 and older can be adopted. Any adult may consent to their own adoption if they are capable of informed consent.
According to section 63.2-1225 of the Virginia Code, any married couple or single individual may adopt. This includes same-sex married couples. It is worthwhile to note that if a couple becomes separated while in the adoption process, Virginia courts have held that the adoption cannot go forward. A separation of the prospective adoptive parents is considered an unstable situation and not in the best interests of the child. In that case, there must be a final decree of divorce before either party can adopt. Also, parties convicted of certain barrier crimes, including registered sex offenders, cannot adopt.
All agencies placing children for adoption in the state of Virginia, whether public or private, must be licensed. The public child-placing agency in Virginia is the Department of Social Services. DSS handles foster care placements, which often turn into adoptive placements.
Though DSS is empowered to remove children from their birth parents for abuse and neglect, the first goal with those children is relative placement, not to adopt the children out. To that end, DSS works with families to provide services and rehabilitation, only seeking termination of parental rights and adoption when reasonable efforts to reunite the family have failed. Parents facing TPR in a DSS case can also do a voluntary entrustment, which opens up the possibility of a post-adoption contact and communication agreement or PACCA with the adoptive parents. A PACCA can allow the birth parents limited contact with the child or children after the adoption.
An example of a private agency is a group like Catholic Charities. Private agencies still must follow Virginia law concerning adoption, but they can be more restrictive concerning who they will help. Some private agencies will not allow same-sex couples to adopt, while others place age limits on couples.
One particular type of agency adoption is the special needs adoption. In this case, the child is unlikely to be adopted due to specific issues. These issues can include mental or physical handicaps, older children, abused children, children from an ethnic minority, and children with other disabilities.
In a stepparent adoption, a stepparent joins with his or her spouse (who is a custodial parent of the child to be adopted) in order to adopt. This can be a relatively uncomplicated adoption if the noncustodial parent consents. Also, if the child is 14 years or older and has lived in the home for at least 5 years, a court can allow the adoption to proceed without the consent of the noncustodial parent. Generally, no home study is required in this type of adoption, though a court may order a report of investigation. Pursuant to § 63.2-1241, stepparent adoptions bypass the JDR court and are filed directly in Circuit court.
In a close relative adoption, if the child is in the home for 2+ years, a home study may not be required, though one can be ordered. Also, the adoption may bypass the JDR court and go directly to Circuit court. If the child is in the home for less than 2 years, the petitioners have to follow the standard adoption procedure. Virginia Code section 63.2-1241.1 defines a close relative as grandparents, great grandparents, adult nephews/nieces, adult brothers/sisters, adult uncles/aunts, adult great uncles/great aunts, stepparents, adult stepbrothers/stepsisters or other adult relatives of the child by marriage or adoption.
Parental placement adoptions can overlap some of the other categories of adoptions. For example, birth parents can place a child through an agency, they can place with a close relative, they can place out of state, or even out of country. When a birth parent has decided upon an adoptive placement, a home study of that placement is required except as outlined above. This home study can be done by a private agency or by the Department of Social Services. Counseling is required for both sets of parents. The parties are required to exchange identifying information. This can be done at a simultaneous meeting or at separate meetings with a social worker for example. Any financial agreements between the parties must be disclosed and there can be no binding contract concerning adoption of the child. Section 63.2-1218 clearly outlines what financial support prospective adoptive parents can provide. Generally, support is limited to reasonable expenses for medical care directly related to a pregnancy, some court expenses, reasonable living expenses if the mother is unable to work, reasonable legal expenses in connection with the adoption and reasonable travel expenses. Documentation of proper payment of allowed expenses is important for the adoption case.
Adult adoptions concern individuals 18 years or older. As stated earlier, an adult must consent to his or her own adoption. In most circumstances, consent from the birth parents is not required. An adult can be adopted by a family member, such as a stepparent or a close relative, or by a legal stranger. Where a legal stranger is adopting an adult, the law requires that the adoptee be 15 years younger than the petitioner, and the two people must have known one another for at least one year prior to filing the petition. An order of reference is usually necessary where a legal stranger is adopting an adult, but can be ordered in any situation.
Interstate adoptions are governed by the Interstate Compact for the Placement of Children. (ICPC). Usually, those adoptions follow the law of the state where the adoption is to be finalized. Any interstate placement by DSS must be approved by both the sending state and the receiving state and can involve very detailed paperwork.
The most complicated adoption is an intercountry adoption. There is an international treaty, called the Hague Adoption Convention that governs some, but not all international adoptions. Where both the receiving and sending countries are members of the Hague Convention, strict procedures must be followed. These procedures affect the pre-placement home study, the immigration status of the child, and the eventual citizenship of the child. In cases where the child is placed in the United States, he or she can be readopted under U.S. laws and procedure which can serve to domesticate the foreign order of adoption.
No review of adoption law in Virginia would be complete without a look at the status of birth fathers. A father in Virginia can acknowledge paternity by signing a voluntary written statement in court. This can be done before or after a paternity test. A court can also find that a given individual is the father of a child after a paternity test. In some cases a man can be presumed to be the father of a child. This occurs when the father is married to the birth mother or if the child is born within 300 days of cohabitation with the birth mother. The presumption can be rebutted through a paternity test or by proving that cohabitation did not occur or was impossible, though the presumed father must petition the court to disestablish paternity. In contrast, Va. Code § 20-49.10 states that a court shall not grant relief from a determination of paternity if the person named as father acknowledged paternity knowing he was not the father.
Finally, Virginia has a Putative Father Registry. Any man who thinks he may have fathered a child can register before the birth of a child or within 10 days after the child is born. This entitles the putative father to specific notice of the termination of his parental rights or any adoption proceedings. A petitioner for adoption is required to search the Registry and certify that either the putative father has been found and notified, or that no information has been found. When notified, the putative father then has the opportunity to object. If the putative father fails to register, he waives his right to object to TPR or adoption unless the birth mother has committed fraud.
As you can see, adoption in Virginia can be a complicated process. While people have the absolute right to represent themselves in court, having the assistance of a knowledgeable attorney is often helpful. An attorney familiar with the statutory adoption framework can help negotiate the hearings, filings and other paperwork that is needed in even the simplest case. Where the case is or becomes complicated, a good attorney is invaluable. Proceeding with an adoption is a significant investment in time.
DISCLAIMER: This article is for informational purposes only. While it references the Virginia Code, it is no substitute for studying the current Virginia Code as it applies to the facts of your specific situation.