We also represent clients in adoption matters, assisting both adoptive parents and birth parents. We do not “find” children for potential adoptive parents, but we guide adoptive parents who have already found a child through the steps required to complete an adoption under the law.
Despite our focus in estate planning and estate administration, we are not “dabblers” in adoption law. Tom Nolan is a Fellow of the American Academy of Adoption Attorneys (recently rechristened as “the Academy of Adoption and Assisted Reproduction Attorneys”), a professional organization of over 400 attorneys throughout the U.S. and Canada. Membership in the Academy is invitational. A Fellow must have acted as counsel in at least 50 adoption proceedings, including 10 interstate placements, and must maintain his practice according to the highest standards of competence and professionalism.
Our law firm is prepared to assist you with your adoption situation, whether it involves (i) a direct placement by a birth mother, (ii) an agency placement, (iii) the adoption or re-adoption of a child from a foreign country, (iv) an adoption by a stepparent, (v) a close relative adoption, (vi) an adoption of a person over age 18, or (vii) an adoption crossing state lines, involving the Interstate Compact on the Placement of Children.
In a parental placement adoption, a birth mother places her child directly with adoptive parents of her choosing. As part of any parental placement, the adoptive parents must undergo a home study performed by a licensed Virginia child-placing agency. After the child’s birth, the birth mother and the adoptive parents must appear together before the appropriate Virginia Juvenile & Domestic Relations Court (“the JDR court”), where the birth mother will give her consent to the proposed adoption. The birth father’s consent may be given in court or in an out-of-court writing. If a birth father is unknown or cannot otherwise be located, his parental rights can be addressed through other means. Parties to a parental placement adoption must exchange identifying information, including, but not limited to, full names and addresses.
Once the birth parents’ rights have been addressed by the JDR court and it grants legal custody of the child to the adoptive parents, they must then complete the adoption in the appropriate Circuit Court where they reside. After the adoption petition is filed, the Circuit Court typically issues a temporary adoption decree (known as an “interlocutory order”), which begins a probationary period of up to 6 months. During the probationary period, the adoptive parents are the child’s legal parents, but they must undergo three post-placement visits by a licensed child-placing agency. The probationary period ends when the agency files its report with the court, after which the Circuit Court issues a final adoption decree, completing the adoption process.
An adoption agency is allowed to place a child over whom the agency has legal custody with adoptive parents it has selected. In these situations, the agency has obtained legal custody through the voluntary or involuntary termination of the birth parents’ legal rights to the child. During the six months following placement, the agency will conduct three post-placement visits and then authorizes the adopting parents to file an adoption petition in the appropriate Circuit Court. The adoption petition includes the agency’s consent to the adoption. After the petition has been filed, the Circuit Court issues an Order of Reference, asking the agency to submit a report on the progress of the placement. The agency then has 60 days to file its “Report of Investigation” with the Court, after which the Court typically enters a final adoption decree.
In an international adoption, the adoptive parents travel to the host country and adopt the child under that country’s laws. International adoptions are generally facilitated by a licensed child-placing agency. Though not required by Virginia law, re-adoption of a child who was adopted in a foreign jurisdiction is highly recommended. Re-adoption lessens the concern that the foreign jurisdiction may arbitrarily change the status of its prior adoption decrees. On a more practical level, it provides a mechanism to change the child’s name and to generate a Virginia-issued birth certificate.
A Petition for Re-adoption is generally filed at one of two times. The adoptive parents may file a petition in the Circuit Court after the child has resided with them for six months and the family has undergone three post-placement visits by a licensed child-placing agency. A second option available to adoptive parents is to file the petition after the child has resided with them for at least one year, generally only requiring one post-placement visit. Under either option, a licensed agency must file a Report of Investigation with the Circuit Court before the Court will enter a final order of adoption.
Stepparent adoptions are perhaps the most common form of adoption in Virginia and occur under a variety of different scenarios, including:
- Where a birth parent has passed away, the surviving birth parent remarries, and the new spouse desires to adopt the child;
- Where a single person adopts a child, marries, and the new spouse desires to adopt the child;
- Where a birth parent divorces, remarries, and the new spouse desires to adopt the child; and
- Where a custodial birth parent of a child born to parents who were not married to each other at the time of the child’s conception or birth marries and the new spouse desires to adopt the child.
Petitions under these circumstances may be granted by the Circuit Court under less stringent requirements than parental placement or agency adoptions, particularly if the birth parent whose rights are being terminated consents or at least does not object.
A close relative adoption is an adoption by a child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt. Close relative adoptions are technically parental placement adoptions. The procedures for close relative adoptions differ based on the amount of time that the child has resided with the adoptive parents at the time that the petition is filed. Where the child has resided with the adoptive parents for less than three years, proceedings must begin in the Juvenile & Domestic Relations court with relaxed procedures. Where the child has resided with the adoptive parents for three or more years, an adoption petition may be filed directly in the Circuit Court.
Adult adoptions – where the person being adopted has reached age 18 – are quite common in Virginia. Unlike adoptions of infants or minor children, they do not require the consent of the adoptee’s birth parents. There are four circumstances under which adult adoptions are permitted in Virginia:
- The adoption of a stepchild over whom the adopting parent has stood in loco parentis for a period of at least three months.
- The adoption of a close relative.
- The adoption of any person who is the birth child of the petitioner or who had resided in the home of the petitioner for a period of at least three months prior to becoming eighteen years of age.
- The adoption of any other person over age 18, for good cause shown, provided that the person to be adopted is at least fifteen years younger than the petitioner and the petitioner and the person to be adopted have known each other for at least one year prior to the filing of the petition for adoption.
Thanks to the internet, social networking, the general mobility of the American people, and numerous other factors, many parental placement adoptions occur across state lines. For instance, a Virginia birth mother may place her child for adoption with an adoptive couple in California, or a Virginia couple might be seeking to adopt a child born in North Carolina. These adoptions have more “moving parts” than an adoption that occurs entirely within Virginia, but that should not discourage either birth parents or adoptive parents from pursuing such opportunities.
In these circumstances, the parties are required to comply with the Interstate Compact on the Placement of Children (“the ICPC”), an agreement among all 50 states, and the District of Columbia. The Compact applies to placements of minor children made from one state to another state and is intended to:
- ensure agency services are provided when a child is moved from one state to another state for adoption;
- ensure compliance with states’ adoption laws; and
- provide that children are returned to their original jurisdiction should the placement fall apart.
Before an adopted child can be taken out of the state where the child was born (i.e., the sending state) and brought to the adopting family’s state of residence (i.e., the receiving state), compact administrators in both the sending state and receiving state must give their permission. This necessarily lengthens the stay of the adopting parents in the sending state, but typically ICPC approval is received within one business week of the filing of the proper applications with the jurisdictions.