FREQUENTLY ASKED QUESTIONS ABOUT THE VIRGINIA ADOPTION PARENTAL PLACEMENT PROCESS AS OF 2009
By Colleen Quinn, Esquire
The Adoption & Surrogacy Law Center
(1) What is a Simultaneous Meeting? A traditional simultaneous meeting is a formal meeting between the adoptive parent(s) and birth (placing) parent(s) with an adoption agency social worker present at which the parties exchange background information. As of July 1, 2007, the parties can waive having such a meeting and also can even waive the exchange of last names and addresses; however, they still have to exchange background information for the benefit of the child. Even if the simultaneous meeting is waived, note that the birth mother in a Virginia parental placement still must sign her consent to the adoption in court in the presence of the adoptive parents. Also, the simultaneous meeting can be extremely beneficial for both the parties and the child and should not be waived lightly.
(2) Hospital procedures – Who Will Carry the Baby Out? The hospital should be contacted in advance of the birth, initially by the birth mother or a representative of the birth mother, and advised of the adoptive placement. Most hospitals will allow the adoptive parents to take the infant from the hospital provided that the birth mom signs a release allowing the hospital to do this. Most hospitals have their own forms for this; however, an attorney for the adoptive parents and/or placing parent should have these forms if needed (as we do at the Adoption & Surrogacy Law Center) and should be available to consult with any hospital personnel should there be any issues. Typically the birth mom also will sign a Health Care Power of Attorney and a HIPAA compliant medical release form that can be used by the adoptive parents to get medical care and attention for the child as well as to obtain the child’s medical records. Most hospitals will allow adoptive parents to be present at the birth and to visit in the nursery with the birth mother’s permission. Some hospitals will even set up a separate room for the adoptive parents to visit with the child in private.
There are some hospitals, however, that will not let the adoptive parents carry the child out absent a court order (which as a practical matter usually cannot be obtained in such a short time period) or may require an attorney or social worker to take the child out. In such situations it may be easier and less expensive for the birth mother (if she is willing) to carry the child out along with adoptive parents.
(3) How Should the Adoptive Parents Handle Health Insurance for the Child? Often there is duplicate health insurance on the child at the time of birth. Usually the birth mother’s health insurance will cover the child and the health insurance of the adoptive parent(s) will as well provided the adoption proceeds forward. The adoptive parent(s) should contact the health insurance carrier prior to the birth. By state (Virginia as well as most other states) and federal law, the adoptive parent(s)’ health insurance must cover the child from the moment of birth. However, insurance companies can vary on what documentation is required in order to establish the adoptive placement. The adoptive parent(s) also should advise the hospital of the coverage. If there are any problems, then the attorney for the adoptive parents should confer with the insurance carrier. At the Adoption & Surrogacy Law Center, we have a standard letter that can be send out to the carrier that includes the referenced state and federal law.
(4) How Does the Application for the Birth Certificate Get Filled Out at the Hospital? At the hospital, the birth mother has several options of what name she may put for the child on the birth certificate application. She must put her name as the mother. For the child she can list: (a) Baby Girl/Boy and then her last name or (b) she can give the child a name she has picked out with her last name or (c) she can give a name the adoptive parents have picked out with her last name or (d) she can give a name both she and the adoptive parents have picked out with her last name or (e) she can give a name both she and the adoptive parents have picked out or that the adoptive parents picked out; in some cases the hospital will allow her to put down the last name of the adoptive parents.
Caveat: If the birth mom puts the last name of the adoptive parents on the application for the birth certificate, or uses a special family names selected by the adoptive parents, then if she subsequently changes her mind about the adoptive placement, then extra legal steps will have to be taken to change the birth certificate to reflect her own last name or to re-name the child.
Once the birth certificate application is completed at the hospital, the birth certificate will not automatically be issued – instead it must be requested by the birth mother or adoptive parents or an attorney representing one of them. Once the Final Order of Adoption is entered and the requisite forms are filed with the Department of Vital Records, then a new birth certificate will be issued naming the adoptive parent(s) as the legal parents. At such time, the original birth certificate and application for the original birth certificate completed at the hospital will be placed under seal. Often the birth mother or the licensed child placement agency will want a copy of the original birth certificate – but it must expressly be requested in order to be issued and must be done before it is placed under seal.
On the birth certificate application, the birth mother can list the birth father as unknown, list nothing or sign an affidavit as to his identity. A birth father also can sign an affidavit of paternity.
(5) How Long Will it Take to Get the New Birth Certificate Once the Final Order of Adoption is Entered? The new birth certificate listing the adoptive parents as the parents cannot be issued until a Final Order is entered. If the child was born in Virginia, it usually takes 8-16 weeks for the Virginia Department of Vital Statistics to issue a new birth certificate. In certain situations (like where the adoptive parents need the birth certificate in order to leave the country), then may be possible to expedite issuance of the new birth certificate.
(6) When Must the Birth Mom Give Her Consent and When Can it Occur? Since July 1, 2006, in Virginia, the birth mother still must come to court and consent before a judge (the consent hearing) but can now give her consent before a judge once the child is at least three (3) days old. She then has up to seven (7) days to revoke. She can waive the seven days if the child is at least ten days old and she has her own legal counsel.
(7) How Will the Birth Father’s Rights Be Addressed? If the birth father is involved in the placement process along with the birth mother, or if he wants to be involved, then he can come to court and give his consent along with the birth mother or he can sign an out of court consent either prior to or after the birth. He also can sign a Denial of Paternity either prior to or after the birth.
If he has not been involved in the placement process, then the following must be done:
(a) He must be given notice of the adoption proceedings if he is acknowledged (such as listed on the birth certificate), presumed (such as married to the birth mother) or adjudicated (such as ordered to pay child support). If he is married to the birth mom – but she signs an affidavit that she did not have conjugal relations with him in the 300 days preceding the birth of the child then notice will not be required.
(b) If he is not acknowledged, presumed or adjudicated (as listed above) then he must be given notice of his right to register with the Virginia Putative Father registry if his identity is reasonably ascertainable. He has ten days to register and, if he does, then he will be entitled to notice of the adoption proceedings.
(c) If he gets notice of the adoption proceedings and if he fails to object and show up and preserve his objection, his rights will be terminated.
(d) If the birth mother does not know who the birth father is – that is, his identity is not reasonably ascertainable – then she can sign an affidavit to that effect under penalty of perjury.
(e) In some instances the court may allow the birth mother to refuse to disclose the identity of the birth father but this usually is in exceptional and rare instances (such as rape or sexual assault or where there may be the risk of bodily injury to the birth mother).
(8) What is the Home Study Report to Court? Before the consent hearing, the agency that did the home study will prepare a report to court that includes the information from the home study as well as the information about the birth parents, the birth of the child, and all fees and costs that have or will be paid. We must have the report to court in order to go forward with the consent hearing.
(9) What is the Status of the Adoptive Parents After the Consent Hearing? At the consent hearing (which happens in the proper Juvenile and Domestic Relations Court), the court will accept the birth parent(s)’ consents and otherwise address the rights of both birth parents. The court also will transfer custody to the adoptive parents and the adoptive parents will have a custody order.
The adoptive parents will then sign an adoption petition to be filed in the appropriate Circuit Court. The Circuit Court will enter an Interlocutory Order that orders the agency that did the report to court to do three visits with the adoptive parents and then file a report of investigation. Only after the report of investigation has been filed can the court move forward with entry of the Final Order.