Virginia

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Ann. Code §§ 63.2-1202; 63.2-1241

Consent shall be executed by:

  • The birth mother
  • Any man who:
  • The child-placing agency or the local board having custody of the child, with the right to place the child for adoption, through court commitment or parental agreement
  • An agency outside the Commonwealth that is licensed or otherwise duly authorized to place children for adoption by virtue of the laws under which it operates

In a stepparent adoption, the adoption may be granted when:

  • The noncustodial birth parent consents, under oath and in writing, to the adoption.
  • The mother swears, under oath and in writing, that the identity of the father is not reasonably ascertainable, rendering his consent unnecessary.
  • The acknowledged, adjudicated, presumed, or putative father named by the mother denies paternity of the child, rendering his consent unnecessary.
  • The child is age 14 or older and has lived in the home of the person desiring to adopt the child for at least 5 years.
  • The noncustodial birth parent is deceased.
  • The noncustodial birth parent executes a denial of paternity under oath and in writing.
  • The child is the result of surrogacy and the noncustodial birth parent consents to the adoption in writing.
  • The noncustodial birth parent:
    • Is not an acknowledged father
    • Is not an adjudicated father
    • Is not a presumed father
    • Is not a putative father who has registered with the Putative Father Registry, and the putative father’s identity is not reasonably ascertainable

Consent of Child Being Adopted Citation: Ann. Code § 63.2-1202

Consent must be executed by the child if he or she is age 14 or older unless the circuit court finds that the best interests of the child will be served by not requiring such consent.

When Parental Consent Is Not Needed Citation: Ann. Code § 63.2-1202

No consent shall be required if:

  • A birth father denies, under oath and in writing, the paternity of the child.
  • The birth father is convicted of rape, statutory rape, incest, or an equivalent offense of another State or any foreign jurisdiction, and the child was conceived as a result of such violation.
  • Any person has had his or her parental rights terminated by a court of competent jurisdiction.
  • A birth parent, without just cause, has neither visited nor contacted the child for a period of 6 months prior to the filing of the petition for adoption.

The failure of the nonconsenting party to appear at the scheduled hearing, either in person or by counsel, after proper notice has been given, shall constitute a waiver of any objection and right to consent to the adoption.

When Consent Can Be Executed Citation: Ann. Code §§ 63.2-1202; 63.2-1233

A birth father may consent to the termination of all of his parental rights prior to the birth of the child.

In a direct parental placement, the adoptive child must be at least in the third calendar day of life before the birth parents can execute consent before the juvenile and domestic relations court.

How Consent Must Be Executed Citation: Ann. Code §§ 63.2-1202; 63.2-1233

No petition for adoption shall be granted unless written consent to the proposed adoption is filed with the petition. Such consent shall be in writing, signed under oath, and acknowledged before an officer authorized by law to take acknowledgments. A birth parent who is under age 18 shall have legal capacity to give consent to adoption and perform all acts related to adoption and shall be as fully bound thereby as if the birth parent had attained age 18.

In a direct parental placement, the birth parent or both birth parents, as the case may be, shall execute consent to the proposed adoption when they come before the juvenile and domestic relations district court in person and in the presence of the prospective adoptive parents. The juvenile and domestic relations district court shall accept the consent of the birth parent(s) and transfer custody of the child to the prospective adoptive parents, pending notification to any nonconsenting birth parent.

The execution of consent before the juvenile and domestic relations district court shall not be required of a birth father who is not married to the mother of the child at the time of the child’s conception or birth if the birth father consents under oath and in writing to the adoption.

Revocation of Consent Citation: Ann. Code §§ 63.2-1204; 63.2-1223; 63.2-1234

Parental consent to an adoption shall be revocable prior to the final order of adoption under these conditions:

  • Upon proof of fraud or duress
  • After placement of the child in an adoptive home, upon written, mutual consent of the birth parents and prospective adoptive parents or child-placing agency

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until the child has reached the age of 10 days, and 7 days have elapsed from the date of execution of the agreement. In addition, a valid entrustment agreement shall be revocable by either of the birth parents if the child has not been placed in the physical custody of adoptive parents at the time of such revocation. Revocation of an entrustment agreement shall be in writing and signed by the revoking party. The written revocation shall be delivered to the child-placing agency or local board to which the child was originally entrusted.

In a direct parental placement, consent shall be revocable by either consenting birth parent for any reason for up to 7 days from its execution. The 7-day revocation period may be waived in writing at the time of consent provided that the child is at least 10 days old and the consenting birth parent acknowledges having received independent legal counsel regarding the effect of such waiver. In the case of two consenting birth parents, the waiver by one consenting birth parent shall not affect the right of the second consenting birth parent to retain his or her 7-day revocation period.

Such revocation shall be in writing, signed by the revoking party or counsel of record for the revoking party, and filed with the clerk of the juvenile and domestic relations district court in which the petition was filed.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Ann. Code § 63.2-1721

Foster parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:

  • A criminal history record check
  • A search of the central registry for any founded complaint of child abuse and neglect

Conviction of a barrier crime shall disqualify an applicant. The term ‘barrier crime’ includes:

  • Murder or manslaughter
  • Malicious wounding
  • Abduction for immoral purposes
  • Assaults and bodily wounding
  • Robbery, burglary, or carjacking
  • Threats of death or bodily injury
  • Felony stalking
  • Sexual assault
  • Arson
  • Drive-by shooting
  • Use of a machine gun or sawed-off shotgun in a crime of violence
  • Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
  • Abuse and neglect of children or failure to secure medical attention for an injured child
  • Child pornography
  • Abuse and neglect of incapacitated adults
  • Delivery of drugs to prisoners
  • Any felony violation relating to possession or distribution of drugs

A foster home also may be disqualified for:

  • A conviction of any other felony not listed above unless 5 years have elapsed since conviction
  • A founded complaint of child abuse or neglect

A child-placing agency may approve as a foster parent an applicant who has been:

  • Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
  • Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
  • Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed

Requirements for Adoptive Parents Ann. Code § 63.2-1721

Adoptive parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:

  • A criminal history record check
  • A search of the central registry for any founded complaint of child abuse and neglect

Conviction of a barrier crime shall disqualify an applicant. The term ‘barrier crime’ includes:

  • Murder or manslaughter
  • Malicious wounding
  • Abduction for immoral purposes
  • Assaults and bodily wounding
  • Robbery, burglary, or carjacking
  • Threats of death or bodily injury
  • Felony stalking
  • Sexual assault
  • Arson
  • Drive-by shooting
  • Use of a machine gun or sawed-off shotgun in a crime of violence
  • Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
  • Abuse and neglect of children or failure to secure medical attention for an injured child
  • Child pornography
  • Abuse and neglect of incapacitated adults
  • Delivery of drugs to prisoners
  • Any felony violation relating to possession or distribution of drugs

An adoptive home also may be disqualified for:

  • A conviction of any other felony not listed above unless 5 years have elapsed since conviction
  • A founded complaint of child abuse or neglect

A child-placing agency may approve as an adoptive parent an applicant who has been:

  • Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
  • Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
  • Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Code § 16.1-283

The parental rights of a parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

  • The neglect or abuse suffered by the child presented a serious and substantial threat to his or her life, health, or development.
  • It is not reasonably likely that the conditions that resulted in such neglect or abuse can be substantially corrected or eliminated to allow the child’s safe return to his or her parent within a reasonable period of time, due to any of the following:
    • The parent has a mental or emotional illness or intellectual disability of such severity that there is no reasonable expectation that the parent will be able to undertake responsibility for the care needed by the child in accordance with his or her age and stage of development.
    • The parent has habitually abused or is addicted to intoxicating liquors, narcotics, or other dangerous drugs to the extent that proper parental ability has been seriously impaired.
    • The parent, without good cause, has not responded to or followed through with appropriate, available, and reasonable rehabilitative efforts on the part of social, medical, mental health, or other rehabilitative agencies designed to reduce, eliminate, or prevent the neglect or abuse of the child.
  • The parent, without good cause, has failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of 6 months after the child’s placement in foster care.
  • The parent, without good cause, has been unwilling or unable within a reasonable period of time, not to exceed 12 months from the date the child was placed in foster care, to remedy substantially the conditions that led to the child’s foster care placement.

The parental rights of a parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

  • The child was abandoned under such circumstances that either the identity or the whereabouts of the parent cannot be determined.
  • The child’s parent, guardian, or relatives have not come forward to identify the child and claim a relationship to the child within 3 months of the child’s placement in foster care.
  • Diligent efforts have been made to locate the child’s parent without avail.

The parental rights of a parent of a child who is in the custody of a local board or licensed child-placing agency may be terminated by the court if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

  • The parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated
  • The parent has been convicted of murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child.
  • The parent has been convicted of felony assault resulting in serious bodily injury, felony bodily wounding resulting in serious bodily injury, or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense.
  • The parent has subjected any child to aggravated circumstances, including torture, chronic or severe abuse, or chronic or severe sexual abuse.

Circumstances That Are Exceptions to Termination of Parental Rights Ann. Code § 16.1-283

Notwithstanding any other provisions of this section, residual parental rights shall not be terminated if it is established that the child, if he or she is age 14 or older or otherwise of an age of discretion as determined by the court, objects to such termination.

Residual parental rights of a child age 14 or older may be terminated over the objection of the child if the court finds that any disability of the child reduces the child’s developmental age and that the child is not otherwise of an age of discretion.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Admin. Code Tit. 22, § 40-280-20

All members of the household shall be interviewed as part of the home study, including children when appropriate.

Agency or Person Conducting the Study Citation: Admin. Code Tit. 22, § 40-280-20

The difference between completing a home study for a child placed by an agency and for a child placed by birth parents is in the role of the agency, not in the assessment of the adoptive family. In an agency placement, the agency approves or denies adoptive applicants based on agency standards. In a parental placement, the agency is to make a recommendation to the court regarding the suitability of the family to adopt. The recommendation is to be based on an assessment of whether the placement is contrary to the best interests of the child. The assessment is based on information gathered during the home study process.

Qualifications for Adoptive Parents Citation: Admin. Code Tit. 22, § 40-280-20

Adoptive applicants shall:

  • Be in satisfactory physical and mental health to enable them to provide adequate care for the child
  • Have the ability to assume responsibility for the care, guidance, and protection of other people
  • Have the flexibility and ability to change in relation to the needs of others
  • Be able to cope with problems, disappointments, and frustrations
  • Be able to accept normal hazards and risks
  • Have the capacity to take responsibility for one’s own actions
  • Have the capacity to accept and handle loss
  • Have the capacity to understand that adoption is a lifelong experience and that the family may need support over time
  • Have the capacity to accept professional support
  • Have the ability to realistically understand the needs and behaviors of children and the impact of adoption on the child and family
  • Have the ability to love and nurture a child born to someone else
  • Be willing to provide connections to the child’s birth family
  • Have the capacity for feeling satisfaction from contributing to the development of a child
  • Have the ability to understand and respond to changing developmental, health, and emotional needs of the child
  • Have the financial ability to meet the basic needs of the child and family for food, clothing, shelter, and medical care

Elements of a Home Study Citation: Admin. Code Tit. 22, § 40-280-20

The home study shall include:

  • There shall be a minimum of three interviews, including at least one interview in the home of the adoptive family and, in the case of married applicants, a joint interview with husband and wife.
  • In a parental placement, the agency social worker shall meet at least once with the birth parents and prospective adoptive parents simultaneously.
  • Adoptive applicants shall provide at least two references from individuals who are unrelated to them.
  • Adoptive applicants shall identify any criminal convictions and be willing to consent to a criminal records search and a search of the Child Protective Services Central Registry.
  • Applicants shall provide a physician’s statement that reflects their current health.

The home study shall include an assessment of the following:

  • Significant life experiences and the applicant’s responses to them
  • Relationships with family members and friends
  • Work history and involvement in community activities
  • The capacity of family members to accept the adopted child as an equal member of the family
  • The applicants’ capacity to parent
  • The applicants’ motivation and readiness to adopt
  • The ability to make a lifelong commitment to a child not born to the applicants
  • The ability to accept the circumstances of the child’s birth family history
  • The capacity to understand the lifelong impact of adoption and to help the child deal with adoption-related issues
  • The degree to which the home environment allows for privacy among family members; adequate play areas; and freedom from health and safety hazards
  • The accessibility of community resources that may be needed for the child
  • The financial circumstances of the family

Grounds for Withholding Approval Citation: Ann. Code §§ 63.2-1205.1; 63.2-1719

No petition for adoption shall be granted if the person seeking to adopt has been convicted of a sexually violent offense or an offense requiring registration as a sex offender.

An applicant shall not be approved if he or she has a conviction for a barrier crime, which includes:

  • Murder or manslaughter
  • Malicious wounding by mob
  • Abduction or abduction for immoral purposes
  • Assault and bodily wounding
  • Robbery
  • Carjacking
  • Threats of death or bodily injury
  • Felony stalking
  • Sexual assault
  • Arson
  • Drive-by shooting
  • Use of a machine gun or a sawed-off shotgun in a crime of violence
  • Pandering
  • Crimes against nature involving children
  • Taking indecent liberties with children
  • Abuse and neglect of children
  • Failure to secure medical attention for an injured child
  • Obscenity offenses
  • Possession of child pornography
  • Electronic facilitation of pornography
  • Abuse and neglect of incapacitated adults
  • Delivery of drugs to prisoners
  • Escape from jail
  • Felonies by prisoners

In the case of adoptive homes approved by child-placing agencies, a barrier crime also includes convictions of burglary and any felony violation relating to possession or distribution of drugs.

An offense is a barrier crime and, in the case of adoptive homes approved by child-placing agencies, means:

  • A conviction of any other felony not included above unless 5 years have elapsed since conviction
  • A founded complaint of child abuse or neglect within or outside the Commonwealth

In the case of adoptive homes approved by child-placing agencies, convictions shall include prior adult convictions and juvenile convictions or adjudications of delinquency based on a crime that would be a felony if committed by an adult within or outside the Commonwealth.

When Studies Must Be Completed Citation: Ann. Code § 63.2-1231; Admin. Code Tit. 22, § 40-280-20

Any home study conducted for the purpose of parental placement or agency placement shall be valid for a period of 36 months from the date of completion. However, the State Board of Social Services may, by regulation, require an additional State criminal background check before finalizing an adoption if more than 18 months have passed from the completion of the home study.

In regulation: A home study conducted for purposes of parental placements shall be approved for a period of 12 months from the date of completion.

Postplacement Study Requirements Citation: Ann. Stat. § 63.2-1208

After an adoption petition has been filed, the court shall refer the case to a child-placing agency to conduct an investigation and prepare a report. The investigation shall include inquiries as to:

  • Whether the petitioner is financially able, morally suitable, in satisfactory physical and mental health, and a proper person to care for and to train the child
  • The physical and mental condition of the child
  • Why the parents, if living, desire to be relieved of the responsibility for the custody, care, and maintenance of the child and what their attitude is toward the proposed adoption
  • Whether the parents have abandoned the child or are morally unfit to have custody over him or her
  • The circumstances under which the child came to live, and is living, in the physical custody of the petitioner
  • Whether the child is a suitable child for adoption by the petitioner
  • What fees have been paid by the petitioners or on their behalf to persons or agencies that have assisted them in obtaining the child
  • Whether the adoptive parents have received the report of the birth parents’ physical and mental health and the background, medical, and psychological records of the child

The report shall include a recommendation as to the action to be taken by the court on the petition.

Exceptions for Stepparent or Relative Adoptions Citation: Ann Code §§ 63.2-1242 through 63.2-1242.3

For a stepparent adoption, an investigation and report shall be undertaken only if the circuit court in its discretion determines that there should be an investigation before a final order of adoption is entered.

A close relative placement is an adoption by the child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great-uncle or great-aunt.

When the child continuously has lived with a close relative for less than 3 years, the adoption proceeding, including court approval of the home study, is subject to parental placement adoption provisions with the following exceptions:

  • The birth parent(s)’ consent does not have to be executed in court in the presence of the prospective adoptive parents.
  • A simultaneous meeting of birth and adoptive parents is not required.
  • No hearing is required for this proceeding.
  • A postplacement investigation and a report shall not be made if the home study report is filed with the court unless the court orders one.
  • The court may omit the probationary period and enter a final order of adoption.
  • The circuit court may waive appointment of a guardian ad litem for the child.

When the child continuously has lived with a close relative for 3 or more years, the parental placement provisions shall not apply. For adoptions under this section:

  • A postplacement investigation and report shall not be made unless the court orders one.
  • The court may omit the probationary period and enter a final order of adoption.
  • The court may waive appointment of a guardian ad litem for the child.

Requirements for Interjurisdictional Placements Citation: Ann. Code § 63.2-1000

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

Foster to Adopt Placements Citation: Ann. Code § 63.2-1229; Admin. Code Tit. 22 §§ 40-211-10; 40-211-20

A foster parent may adopt the foster child that is placed in his or her home when:

  • The child has resided in the home of the foster parent continuously for at least 18 months.
  • The birth parents’ rights to the child have been terminated.

The circuit court shall accept the petition filed by the foster parent and shall order a thorough investigation of the matter to be made pursuant to § 63.2-1208. The court may refer the matter for investigation to a licensed child-placing agency other than the agency holding custody of the child. Upon completion of the investigation and report and filing of the consent of the agency holding custody of the child, the circuit court may enter a final order of adoption waiving visitation requirements, if the circuit court determines that the adoption is in the best interests of the child.

In regulation: A resource parent is an approved provider who is committed both to support reunification and to be prepared to adopt the child if the child and family do not reunify. When applicants are approved in accordance with regulations, they are approved as foster families, adoptive families, resource families, or respite families. The approved provider shall, however, be allowed to choose to provide only foster care, adoptive care, or respite care if they do not wish to serve as a resource family.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Code §§ 18.2-371.1; 40.1-103

A child may be relinquished within the first 14 days after his or her birth.

Who May Relinquish the Infant Citation: Ann. Code §§ 18.2-371.1; 40.1-103

The child may be relinquished by his or her parent.

Who May Receive the Infant Citation: Ann. Code §§ 18.2-371.1; 40.1-103

The child may be delivered to:

  • A hospital that provides 24-hour emergency services
  • A rescue squad that employs emergency medical technicians

Responsibilities of the Safe Haven Provider

This issue is not addressed in the statutes reviewed.

Immunity for the Provider Citation: Ann. Code § 8.01-226.5:2

Any personnel of a hospital or rescue squad receiving a child who has been voluntarily relinquished by his or her parent shall be immune from civil liability or criminal prosecution for injury or other damage to the child unless such injury or other damage is the result of gross negligence or willful misconduct by such personnel.

Protection for Relinquishing Parent Citation: Ann. Code §§ 18.2-371.1; 40.1-103

Relinquishment of the child shall be an affirmative defense to prosecution of a parent for abuse or neglect of children, cruelty to children, or endangering a child. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child’s safety.

Effect on Parental Rights Citation: Ann. Code § 63.2-910.1

A local department shall have authority to:

  • Take custody of the child
  • Arrange an appropriate placement
  • Institute proceedings to terminate parental rights

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Ann. Code § 63.2-1218

Payment of the following expenses is permitted:

  • Medical expenses and insurance premiums that are directly related to the birth mother’s pregnancy and hospitalization
  • Mental health counseling for the birth mother and birth father
  • Reasonable and necessary expenses for food, clothing, and shelter when the birth mother is unable to work due to her pregnancy
  • Reimbursement for expenses incurred incident to any court appearance, including, but not limited to, food, lodging, and transportation
  • Fees for legal services
  • Transportation to any of the services provided

Birth Parent Expenses Not Allowed Citation: Ann. Code § 63.2-1218

Fees determined to be in excess of usual or customary are prohibited.

Allowable Payments for Arranging Adoption Citation: Ann. Code § 63.2-1218

No person or child-placing agency shall charge, pay, give, or agree to give or accept any money, property, service, or other thing of value in connection with a placement or adoption except reasonable and customary services provided by a licensed or duly authorized child-placing agency and fees paid for such services.

Allowable Payments for Relinquishing Child Citation: Ann. Code § 63.2-1232(A)(4)

In a parental placement adoption, all parties must verify for the court that they understand that no binding contract regarding placement or adoption of the child may exist based on any financial agreement.

Allowable Fees Charged by Department/Agency Citation: Ann. Code § 63.2-1248

Local departments of social services shall assess fees for home studies, investigations, visits, and reports. The fee charged shall not exceed the actual cost of the service.

The board shall adopt regulations and fee schedules, which shall include:

  • Standards for determining the petitioner’s or applicant’s ability to pay
  • A scale of fees based on the petitioner’s or applicant’s income and family size and the actual cost of the services provided

Accounting of Expenses Required by Court Citation: Ann. Code § 63.2-1232(A)(4)

In a parental placement adoption, any financial agreements or exchange of property among the parties and any fees paid or charged must be disclosed to the court.

The Rights of Unmarried Fathers

Legal Definition of Father

This issue is not addressed in the statutes reviewed.

Paternity Registry Ann. Code §§ 63.2-1249; 63.2-1250

A Putative Father Registry is hereby established in the Department of Social Services. A man who desires to be notified of a proceeding for adoption of, or termination of parental rights regarding, a child that he may have fathered shall register with the Putative Father Registry before the birth of the child or within 10 days after the birth.

A man will not prejudice any rights by failing to register if:

  • A father-child relationship between the man and the child has been established pursuant to §§ 20-49.1 or 20-49.8, or the man is a presumed father as defined in § 63.2-1202.
  • The man commences a proceeding to adjudicate his paternity before a petition to accept consent or waive adoption consent or a petition for adoption or a petition for the termination of his parental rights is filed with the court.

Failure to register shall waive all rights of a man who is not an acknowledged, presumed, or adjudicated father to withhold consent to an adoption proceeding unless the man was led to believe through the birth mother’s fraud that the pregnancy was terminated or the mother miscarried when in fact the baby was born, or that the child died when in fact the child is alive.

Any man who has engaged in sexual intercourse with a woman is deemed to be on legal notice that a child may be conceived and the man is entitled to all legal rights and obligations resulting therefrom. Lack of knowledge of the pregnancy does not excuse failure to register in a timely manner, except when the identity of such man is reasonably ascertainable.

Alternate Means to Establish Paternity Ann. Code § 20-49.1

The parent and child relationship between a child and a man may be established by:

  • Scientifically reliable genetic tests, including blood tests, that affirm at least a 98-percent probability of paternity.
  • A voluntary written statement of the father and mother made under oath acknowledging paternity and confirming that prior to signing the acknowledgment the parties were provided with a written and oral description of the rights and responsibilities of acknowledging paternity and the consequences arising from a signed acknowledgment, including the right to rescind.

Written acknowledgments of paternity made under oath by the father and mother prior to July 1, 1990, shall have the same legal effect as a judgment entered pursuant to § 20-49.8.

Required Information Ann. Code § 63.2-1250

The department shall prepare a form for registering with the agency that shall require:

  • The registrant’s name, date of birth, and Social Security number
  • The registrant’s driver’s license number and State of issuance
  • The registrant’s home address, telephone number, and employer
  • The name, date of birth, ethnicity, address, and telephone number of the putative mother, if known
  • The State of conception
  • The place and date of birth of the child, if known
  • The name and gender of the child, if known

Revocation of Claim to Paternity Ann. Code § 20-49.1

An acknowledgment of paternity may be rescinded by either party within 60 days from the date on which it was signed unless an administrative or judicial order relating to the child in an action to which the party seeking rescission was a party is entered prior to the rescission.

A written statement shall have the same legal effect as a judgment entered pursuant to § 20-49.8 and shall be binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress, or a material mistake of fact. In any subsequent proceeding in which a statement acknowledging paternity is subject to challenge, the legal responsibilities of any person signing it shall not be suspended during the pendency of the proceeding, except for good cause shown.

Access to Information Ann. Code § 63.2-1251

The department is not required to locate the mother of a child who is the subject of a registration, but the department shall send a copy of the notice of registration to the mother if an address is provided.

Information contained in the registry is confidential and only may be released on request to:

  • A court or a person designated by the court
  • The mother of the child who is the subject of the registration
  • An agency authorized by law to receive such information
  • A licensed child-placing agency
  • A support enforcement agency
  • A party or the party’s attorney of record in an adoption proceeding or in a proceeding of termination of parental rights
  • A putative father registry in another State

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Ann. Code §§ 63.2-1218; 63.2-1225

No person shall advertise or solicit to perform any activity prohibited by this section. Any person violating the provisions of this section shall be guilty of a felony.

A physician, attorney, or member of the clergy shall not charge any fee for recommending [a placement of a child for adoption] to a board or agency and shall not advertise that he or she is available to make such recommendations. An attorney may, however, charge for legal fees and services rendered in connection with the placement.

Use of Intermediaries/Facilitators Citation: Ann. Code § 63.2-1218

No person or child-placing agency shall charge, pay, give, or agree to give or accept any money, property, service, or other thing of value in connection with a placement or adoption or any act undertaken pursuant to this chapter, except:

  • Reasonable and customary services provided by a licensed or duly authorized child-placing agency and pees paid for such services
  • Payment or reimbursement for medical expenses and insurance premiums that are directly related to the birth mother’s pregnancy and hospitalization for the birth of the child who is subject to the adoption proceedings, for mental health counseling by the birth parent(s) related to the adoption, and for expenses incurred for medical care for the child
  • Payment or reimbursement for reasonable and necessary expenses for food, clothing, and shelter when, upon the written advice of her physician, the birth mother is unable to work or otherwise support herself due to medical reasons or complications associated with the pregnancy or birth of the child
  • Payment or reimbursement for reasonable expenses incurred incidental to any required court appearance including, but not limited to, transportation, food, and lodging
  • Usual and customary fees for legal services in adoption proceedings
  • Payment or reimbursement of reasonable expenses incurred for transportation in connection with any of the services specified in this section and as necessary for compliance with the law in such placements

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Ann. Code §§ 63.2-1201; 63.2-1201.1

Any of the following persons may adopt:

  • A resident
  • A person with custody of a child placed by a child-placing agency
  • An adopting parent of a child who was subject to a consent proceeding
  • Intended parents who are parties to a surrogacy contract
  • A husband and wife jointly
  • A stepparent

A man and woman previously married to each other who stood in loco parentisto a child during their marriage to each other, who could have adopted the child while married to each other, but whose marriage is void, has been annulled, or has dissolved, may adopt the child pursuant to the provisions applicable to married persons.

Who May Be Adopted Citation: Ann. Code §§ 63.2-1200; 63.2-1243

The following persons may be adopted:

  • A minor child
  • A person age 18 or older under the following circumstances:
    • The adopted person is a stepchild to whom the petitioner has stood in loco parentis for a period of at least 3 months.
    • The adopted person is a close relative.
    • The adopted person is the birth child of the petitioner or had resided in the home of the petitioner for a period of at least 3 months prior to reaching age 18.
    • For good cause shown, as long as the adopted person is at least 15 years younger than the petitioner, and the petitioner and the adopted person have known each other for at least 5 years prior to the filing of the petition for adoption.

Who May Place a Child for Adoption Citation: Ann. Code § 63.2-1200

A child may be placed for adoption by:

  • A licensed child-placing agency
  • A local board of social services
  • The child’s parent or legal guardian if the placement is a parental placement
  • Any agency outside the Commonwealth that is licensed or otherwise duly authorized to place children for adoption by virtue of the laws under which it operates

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Code §§ 63.2-1246; 63.2-1247

Nonidentifying information may be disclosed to:

  • The adopted person who is age 18 or older
  • The licensed or authorized child-placing agencies providing services to the child
  • The adoptive parents

Identifying information may be released to:

  • The adopted person who is age 21 or older
  • The birth parents
  • An adult birth sibling

Access to Nonidentifying Information Citation: Ann. Code § 63.2-1246

Nonidentifying information shall not be open to inspection, or be copied, by anyone other than those listed above, except upon the order of a circuit court upon good cause shown.

Mutual Access to Identifying Information Citation: Ann. Code § 63.2-1247

For adoptions finalized on or after July 1, 1994, the following requests for disclosure of identifying information are permitted in the following circumstances:

  • The adopted person who is age 21 or older may apply for information about the birth family.
  • The birth parents and adult birth siblings may apply for information about the adopted person.
  • When the adopted person is under age 18, the adoptive parents or other legal custodian of the child may apply for information about the birth family.

The Commissioner of Social Services shall designate the person or agency that made the investigation to attempt to locate and advise the person whose information is sought of the application. The designated person or agency shall report the results of the attempt to locate and advise the adopted person to the commissioner, including the effects that disclosure of the identifying information may have on the adopted person, the adoptive parents, and the birth family. The adopted person and the birth family may submit to the commissioner, and the commissioner shall consider, written comments stating the effect that the disclosure of identifying information may have upon any party. Upon a showing of good cause, the commissioner shall disclose the identifying information. When consent of the person being sought is not obtainable due to death or mental incapacity, the circuit court may release identifying information to the person making the request. In making this decision, the circuit court shall consider the needs and concerns of all persons involved.

In parental placement adoptions, where the consent to the adoption was executed on or after July 1, 1994, the entire adoption record shall be open to the adoptive parents, the adopted person who is age 18 or older, and the birth parent who executed a written consent.

Access to Original Birth Certificate Citation: Ann. Code § 32.1-261

Upon receipt of notice of a decision or order granting an adult adopted person access to identifying information regarding his or her birth parents from the Commissioner of Social Services or a circuit court, and proof of identification and payment, the State Registrar shall mail an adult adopted person a copy of the original certificate of birth.

Where the Information Can Be Located

Virginia Department of Social Services, Adoption Unit

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Code § 64.1-5.1

For the purpose of determining rights to property or to determine succession by, through, or from a person, an adopted person is not the child of the birth parents, except that adoption of a child by the spouse of a birth parent has no effect on the relationship between the child and either birth parent.

Adoptive Parents in Relation to Adopted Person Citation: Ann. Code § 64.1-5.1

For the purpose of determining rights to property or to determine succession by, through, or from a person, an adopted person is the child of the adopting parent(s).

Adopted Persons Who Are Not Included in a Will Citation: Ann. Code §§ 64.1-71; 64.1-71.1

If a will is made when a testator has a child living, and that child is provided for in the will, and another child is adopted afterwards, such after-adopted child, if not provided for by any settlement and neither provided for nor expressly excluded by the will, but is only pretermitted, shall succeed to the lesser of (a) such portion of the testator’s estate as he or she would have been entitled to if the testator had died intestate or (b) the equivalent in amount to any bequests to any child named in the will.

If an after-born or after-adopted child dies while he or she is under age 18, unmarried, and without issue, his or her portion of the estate, or so much thereof as may remain unexpended, shall revert to the person to whom it was given by the will.

In the interpretation of wills and trusts, adopted persons are included in class gift terminology or terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, unless a contrary intent is apparent in the will or trust.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Ann. Code § 63.2-1220.2

In any proceeding for adoption pursuant to Chapter 12, the birth parents and the adoptive parents of a child may enter into a written postadoption contact and communication agreement that may include, but is not limited to, provisions related to contact and communication between the child, the birth parents, and the adoptive parents and provisions for the sharing of information about the child, including sharing of photographs of the child and information about the child’s education, health, and welfare.

Any postadoption contact and communication agreement shall include acknowledgment by the birth parents that the adoption of the child is irrevocable, even if the adoptive parents do not abide by the postadoption contact and communication agreement, and acknowledgment by the adoptive parents that the agreement grants the birth parents the right to seek to enforce the provisions set forth in the agreement. The petitioner for adoption shall file the agreement with other documents filed in the circuit court having jurisdiction over the child’s adoption.

Who may be a party to a postadoption contact agreement? Ann. Code §§ 16.1-283.1; 63.2-1220.2

In any case in which a child has been placed in foster care as a result of court commitment, an entrustment agreement entered into by the parent or parents, or other voluntary relinquishment by the parent or parents, the child’s birth parent or parents may enter into a written postadoption contact and communication agreement with the preadoptive parent or parents.

In any proceeding for adoption pursuant to Chapter 12, the birth parent(s) and the adoptive parent(s) of a child may enter into a written postadoption contact and communication agreement.

What is the role of the court in postadoption contact agreements? Ann. Code §§ 16.1-283.1; 63.2-1220.3

The court may consider the appropriateness of a written postadoption contact and communication agreement at the permanency planning hearing and, if the court finds that all of the requirements of § 16.1-283.1(A) and § 63.2-1220.2, et seq., have been met, shall incorporate the written postadoption contact and communication agreement into an order entered at the conclusion of the hearing.

The circuit court may approve a postadoption contact and communication agreement authorized pursuant to § 16.1-283.1 and filed with the court for a petition for adoption if:

  • The court determines that the child’s best interests would be served by approving the postadoption contact and communication agreement.
  • The adoptive parent or parents and birth parent or parents have consented to a postadoption contact and communication agreement filed with the court.
  • The agency authorized to consent to the child's adoption and the child's guardian ad litem have recommended that the postadoption contact and communication agreement be approved as being in the best interests of the child, or, if there is no agency sponsoring the adoption, the agency that prepared the adoption report has been informed of the postadoption contact and communication agreement and has recommended in the agency’s report to the circuit court that the postadoption contact and communication agreement be approved.
  • The adoptive child who is age 14 or older consents to the postadoption contact and communication agreement.

The circuit court shall not require execution of a postadoption contact and communication agreement as a condition for approving any adoption.

Are agreements legally enforceable? Ann. Code §§ 63.2-1228.1; 63.2-1220.3; 63.2-1220.4

A birth parent or parents or adoptive parent or parents who have executed a postadoption contact and communication agreement may file a petition with the court to compel a birth or adoptive parent to comply with the postadoption contact and communication agreement. The court may not award monetary damages as a result of the filing of a petition for compliance with the agreement.

To be enforceable, any agreement under this section shall be approved by the circuit court and incorporated into the final order of adoption.

Unless otherwise stated in the final order of adoption, the circuit court of the jurisdiction in which the final order of adoption was entered shall retain jurisdiction to modify or enforce the terms of a postadoption contact and communication agreement.

A birth parent or parents or adoptive parent or parents who have executed a postadoption contact and communication agreement may file a petition with the circuit court of the jurisdiction in which the final order of adoption was entered to compel a birth or adoptive parent to comply with the postadoption contact and communication agreement.

The court may not award monetary damages as a result of the filing of a petition for modification of or compliance with the agreement.

How may an agreement be terminated or modified? Ann. Code § 63.2-1220.2

Unless otherwise stated in the final order of adoption, the circuit court of the jurisdiction in which the final order of adoption was entered shall retain jurisdiction to modify or enforce the terms of a postadoption contact and communication agreement.

A birth parent or parents or adoptive parent or parents who have executed a postadoption contact and communication agreement may file a petition with the court to modify the postadoption contact and communication agreement.

The court may not award monetary damages as a result of the filing of a petition for modification of the agreement. The court may modify the agreement at any time before or after the adoption if the court, after notice and opportunity to be heard by the birth parent or parents and the adoptive parent or parents, determines that the child’s best interests require the modification of the agreement. Before the court modifies an agreement or hears a motion to compel compliance, the court may appoint a guardian ad litem to represent the child’s best interests.

The court shall not grant a request to modify the terms of a postadoption contact and communication agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the child’s best interests. No modification shall affect the irrevocability of the adoption.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

This issue is not addressed in the statutes reviewed.

Readoption After an Intercountry Adoption

Ann. Code § 63.2-1220(B)-(C)

Adoptive parents who are residents of the Commonwealth may petition the circuit court in the city or county where they reside for a report of adoption when the adoptive parents are seeking a Virginia certificate of birth for a child adopted in a foreign country that has postadoption reporting requirements and with whom the United States has diplomatic relations. The adoptive parents shall provide the circuit court with:

  • Evidence, such as an admission stamp in the child’s passport, that the child was admitted to the United States with an immediate relative immigrant visa (IR-3)
  • A report of adoption on a form furnished by the State Registrar of Vital Records
  • Completed postadoption reports
  • A signed affidavit stating that any outstanding postadoption requirements shall be met as required by the foreign country

The affidavit shall also include the name by which the child is to be known.

The circuit court shall review all documents provided by the adoptive parents. If the circuit court finds that all requirements of this subsection have been met, the circuit court may issue the report of adoption to the State Registrar for issuance of a Virginia certificate of birth in accordance with § 32.1-262.

Except as provided above, adoptive parents seeking to have a child from a foreign country adopted or who choose to readopt a child from a foreign country in Virginia shall comply with all adoption requirements of this chapter in order to get a Virginia certificate of birth.

Application for a U.S. Birth Certificate

Ann. Code §§ 32.1-261(E); 32.1-262(D)

The State Registrar shall establish and register a Virginia certificate of birth for a person born in a foreign country and for whom a report or final order of adoption has been entered in a court of this Commonwealth when the State Registrar receives an adoption report as provided in § 32.1-262 and a request that such a certificate be established and registered. After registration of the birth certificate in the new name of the adoptee, the State Registrar shall seal and file the report of adoption. The report shall not be subject to inspection except upon order of a court.

The birth certificate shall show the true or probable foreign country of birth and shall state that the certificate is not evidence of U.S. citizenship for the child for whom it is issued or for the adoptive parents.

When the State Registrar receives a report of adoption from a court in this Commonwealth for a person born in a foreign country, a birth certificate shall be registered for such person in accordance with the provisions of § 32.1-261, and a copy of the report of adoption shall be transmitted to the appropriate Federal agency.

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [[https://www.childwelfare.gov/adoption/laws/domestic.cfm#sss

References