When a parent of a child marries or remarries, there are lots of
changes that happen to create a new family dynamic. The stepparent may
want to adopt his spouse's child as his own. There are several different
situations in which adoption becomes the best decision for this newly formed
family. There are, however, a few obstacles that could prevent this from
being an uncomplicated process.
I am often asked
by people who are in long term relationships whether they can adopt the other
partner's biological child. At present, if they were to do that, it would
terminate the parental rights of the biological parent, which is not the goal.
Under Virginia law, the couple has to marry in order for this adoption to
add a parent, without subtracting the biological parent.
Next, the child
must be legally free for adoption. What does this mean? Under Virginia
law, as in other states, you have to consider the parental rights of the other
biological parent.
If the biological
parent gives consent, then the process is straightforward. The parent's
consent document is filed with the Petition for Adoption along with a proposed
Final Adoption Order in the Circuit Court. In most cases, the Final
Adoption Order is entered without a hearing fairly quickly. Some courts
will order an investigation by the County Department of Social Services, which
will add two months to the process.
Four Categories of Birth Fathers
The birth father who is listed on the child's birth certificate is an acknowledged father. If the father is
not listed on the child's birth certificate, we must determine whether the
biological father has ever been adjudicated as a father through a paternity
test or child support order. Alternatively, were the biological parents
married but for some reason, the father was not listed on the birth
certificate?
Another category
of birth fathers that have the right to notice of the adoption plan are those
who have properly registered with the Virginia Putative Father Registry or the
Putative Father Registry in the state where the child was conceived or born.
More information on the Virginia Putative Father Registry can be found at
the Virginia Department of Social Services which maintains a data base of those
who have properly registered to receive notice of any potential adoption plan:
http://www.dss.virginia.gov/family/ap/putative_fatherhood.cgi
If there is a
birth father who qualifies under one of these four categories, then we either
need to obtain his consent or the Court will hold a best interests hearing to
determine if he is withholding his consent contrary to the best interests of
the child.
Abandonment
However, in many
situations, the birth father has not been in touch with the child for years.
In some instances, there is a child support order in place but there has
been no visitation or contact with the child. Often, we do not even know where
the birth father is living anymore.
Virginia has
an abandonment statue where if the biological parent hasn't visited or
contacted the child for the six months prior to filing the case, the Court may
hold a hearing and determine that that parent's consent is no longer necessary.
There is a higher evidentiary standard at those hearings. And, the
missing biological parent must receive notice of the abandonment allegations so
they can contest the allegation of abandonment. In other words, perhaps
they have a really good reason for dropping out of the child’s life such as the
birth mother disappeared with the child and left no forwarding address, phone
number or social media contact. But, absent that, the Court may order the
adoption even if the biological parent objects if the Court finds by clear and
convincing evidence that the biological parent has abandoned the child.
Other Common Questions
"Can I just
add my husband's name to the birth certificate". The short answer is
no, you can't just simply add a name to the certificate. Your child has
to be legally adopted by your husband.
What happens when
the biological father doesn't agree to terminate his rights? Then the Court
has to hold a hearing to determine whether the adoption is in the best interest
of the child or not.
Does the child
have to consent? The child has to consent to the adoption if he is 14
years old or older.
We work with many
families in Virginia on stepparent adoptions. It is always a joyful moment when we appear in front of the Court and the family that has been acting
as a family for many years finally receives legal recognition of that. The
child will then receive a second birth certificate with the new parent
added. This does not eliminate the first
birth certificate or the biological parent’s role in the child’s early
life. The child will always have two
birth certificates. However, legally,
the stepparent will have all the rights and obligations of a parent after the
stepparent adoption is completed.Drafted by Karen S. Law, with assistance from Brittany Alness, staff member of the Law Offices of Karen S. Law, PLC.
Disclaimer
This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this web-site are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2017.
