ADOPTION
Adoption by a Step-parent in Virginia
Step-parent adoptions can be difficult and expensive, or they can be the easiest of adoptions, depending upon whether the biological parent consents to the adoption or whether such consent is withheld.
The court may permit adoption without the birth parent's consent if the child was born out of wedlock and the mother does not know the identity of the father, if the putative father denies paternity under oath, or if the child is over the age of 14 and has lived in the home of the petitioner for at least five years. The court, however, always has the right to order an investigation before entering any final order of adoption. In the tri-cities area, the court usually requires an investigation prior to entering a final order, even in step-parent adoptions.
If the birth father is known, but his whereabouts are not ascertainable to obtain his consent or objection, notice may be served by publication in a newspaper for four consecutive weeks in the area of the last known address of the father. The court may, in its discretion, require an evidentiary hearing to determine that the consent of the father is unobtainable and that the adoption is in the best interest of the child.
Sometimes, the biological parent refuses to consent to the adoption. The court then has the authority to grant an adoption over the protest of the non-consenting birth parent, if the court finds that the consent is being withheld contrary to the best interest of the child. The standard of proof is tough. The petitioner must show by clear and convincing evidence that the non-consenting parent is unfit, or that a continued relationship with the non-consenting parent would be detrimental to the child. Frequently, the noncustodial parent may be persuaded to consent, once he or she realizes that his or her child support obligations will end upon entry of the adoption order. If not, a professional evaluation by a psychiatrist or other expert may be needed to help show that the adoption should be granted despite the objection.
It is important to realize that local courts have local rules pertaining to the processing of adoption requests and, although the statutes may not always require hearings or investigations, the local judges may demand hearings and investigations anyway. In fact, step-parent adoption is one of the few types of adoption for which no home study is required by statute, provided a birth parent of the child also signs the petition, indicating consent to the adoption of the child by the petitioner, and the birth parent is lawfully married to the petitioner. In the tri-cities area, however, the courts routinely require investigation and home studies in all adoption proceedings.
Costs and Procedures
The first step in the adoption process is to deal with the rights of the noncustodial birth parent. This is done by securing either (1) an affidavit denying paternity, (2) written consent, (3) an affidavit that the identity of the father is not reasonably ascertainable, (4) a certified copy of a parent's death certificate, or (5) where the non-consenting is missing or cannot be located, an affidavit certifying service by publication of notice of the adoption. There may also be a court hearing needed to determine if withholding of consent to adopt is contrary to the best interest of the child.
The filing fees for adoption are $27-29 (but fees are subject to change). The cost for a new birth certificate is $12 (fee subject to change). Publication in the paper runs several hundred dollars, depending upon the newspaper used and length of required notice, which is placed generally in the legal notices section of the paper. Attorneys fees average $1500-2000 for a simple adoption by step-parent, but will be more if the matter is contested and/or consent to adopt is not obtained. In addition, if a guardian ad litem is appointed to represent the child, the guardian ad litem's fee is set by the court and may also be assessed against the petitioner as costs of the court proceeding. A guardian ad litem is an attorney appointed to investigate the matter and represent the child's best interest in the proceeding.
Please contact us for information about other adoptions. We also handle parental placement adoptions and agency adoptions.
These pages provide general information only, and are not intended to offer specific legal advice for your situation. Visiting this site does not establish an attorney-client relationship. Please note that we are licensed attorneys only in Virginia, and we do not purport to do business or offer advice outside of Virginia.