STEP-PARENT ADOPTION IN VIRGINIA
By Colleen Quinn, Esquire
The Adoption & Surrogacy Law Center
HOW DO STEP-PARENT ADOPTIONS WORK IN VIRGINIA AND WHAT WILL IT COST?
SIMPLE UNCONTESTED STEP-PARENT ADOPTIONS ARE WHEN THE BIRTH PARENT IS DECEASED, IS COMPLETELY UNKNOWN (ONLY APPLIES TO BIRTH FATHERS) OR IS WILLING TO CONSENT.
Step-parent adoption in Virginia is a relatively straightforward process if the birth parent whose rights are going to be terminated is (1) deceased, or (2) is the birth father and his identity is completely unknown or (3) known and willing to consent to the adoption. In such an event, no court hearing will be required and the adoption is fairly simple.
The step-parent seeking to adopt must file a petition in Circuit Court. The custodial birth parent (i.e., the wife or husband of the petitioner) must join in the petition, thereby indicating his or her consent to the adoption.
If the birth parent’s whereabouts are known and he/she is willing to sign a consent to the adoption, or if he or she is deceased, or if his identity is completely unknown and always has been unknown (and clearly he was never married to the birth mother or named on the birth certificate or otherwise named or determined to be the father), then it is a simple step-parent adoption.
After we file the adoption petition, the court has the discretion to enter a Final Order of Adoption and usually will do so if the child has lived with the step-parent for at least three years. Alternatively, the court can enter an Order of Reference which requires a local, licensed child placement agency or the local Department of Social Services to do a 60-day report. The agency or department typically will charge you directly for that report. If the step-parent and his or her spouse have not been married for very long, or the step-parent has not been in the position of acting like a parent to the child for very long, then the court will usually require this report.
If the child was born in another state then you will need to use the adoption order to get the new birth certificate. If the child was born in Virginia then we will get the new birth certificate for you, which is included in the flat fee and anticipated costs.
IF THE BIRTH PARENT’S IDENTITY IS KNOWN BUT WHEREABOUTS ARE NOT KNOWN
If the non-custodial birth parent’s identity is known but whereabouts are unknown or consent will not be given, then the process is more involved. If the whereabouts are unknown, and you would like for us to try and find the birth parent (instead of you doing the search), then we must do the search and attempts to reach the birth parent on an hourly basis plus costs and will request an initial retainer to find him or her and see if he or she will consent. If we locate the missing birth parent and he or she will not sign a consent, OR if we cannot find at least a last known address – then we need to set the matter for hearing and will continue to charge at our normal hourly rates. If we cannot find a last known address, then not only must we set a hearing before the court and check the Virginia Putative Father registry (as well as the registries for any other states in which the birth parent lived) but we also typically need to do an Order of Publication.
Accordingly, in order to keep your costs to a minimum, it is advisable for the step-parent and spouse to try some internet sleuthing themselves to locate the whereabouts of the birthparent so that we can involve him or her as early in the process as possible and avoid the added costs of search and publication. Also, the birth parent could give his or her consent to the placement yet still ask that visitation or ongoing contact rights be written into the adoption order.
THE ABANDONMENT STATUTE
If the known birth parent has not had any contact with the child for at least six months prior to the filing of the adoption petition, then based on a showing of clear and convincing evidence, the rights of that birth parent may be terminated on the grounds of abandonment. However, the birth parent still must receive notice of the adoption proceeding and a hearing still has to be set. If the birth parent cannot be found then an Order of Publication may be required.
THE CONTESTED PROCEEDING
If a birth parent appears at the consent hearing and contests the adoptive placement, then the proceeding becomes a contested proceeding. The birth parent will have to be shown to be objecting over the child’s best interest. This will require an evidentiary hearing and the legal fees at this point can be somewhat expensive. Holding a contested proceeding is not recommended unless it is clear that the court is going in all likelihood to find that the birth parent is objecting contrary to the child’s best interests.
CONSULTATION
We highly recommend setting up a consultation for those situations where the step-parent adoption is not a simple uncontested placement. This is important in order to have an overall understanding of the process as well as expected fees and costs.