Elder Law, Estate Planning and Family Formation

Adoption Basics: Stepparent Adoptions

It is often said that 50% of all marriages end in divorce. Whether that statistic is true or not (some say not), I find myself helping many blended families with stepparent adoptions. Many of my cases are ones where the biological parent who does not have physical custody of the child cannot be found and/or has not visited with the child for a significant period of time. In other cases, the biological parent is around but has decided that it would be in the best interest of the child to be adopted by a stepparent. It may have to do with the fact that the parent with physical custody and his/her spouse want the child to have the same last name as the remarried parent, to ensure that the child really feels like a part of this new family or the child may have grown particularly attached to the stepparent.

The process for proceeding with a stepparent adoption is defined by statute and can be found in Virginia Code Sections 63.2-1241 and 63.2-1242, although other general adoption statutes also play a part. The most difficult part of the process is the first step: deciding how to address the rights of the birth parent whose rights are to be terminated. This step is easy to overcome where the birth parent is deceased, his identity is unknown, or he/she is willing to consent. When this is the case, we proceed by filing a petition with the Circuit Court and no court hearing is necessary. The stepparent and the natural parent join together in petitioning the court to grant the adoption. Generally, the court will not require that an investigation be conducted into the living situation of the child. In fact the court will often enter a final order of adoption within a month or two following the initial filing.

The process is more involved when the birth parent is known but his/her whereabouts are unknown, or the birth parent is unwilling to consent. When a birth parent’s whereabouts are unknown, steps must be taken to locate the birth parent. Note that this is true even when the birth parent has abandoned the child; notice is still required to be given to the parent before the adoption can proceed. If the search for the birth parent does not result in any reliable information, an order of publication is necessary. An order of publication is an order that the court enters directing a newspaper to print a legal ad for the purpose of notifying in this case a birth parent of an impending adoption proceeding concerning his/her child. Where the birth parent is unwilling to consent, it is necessary to have a contested hearing. In this hearing, the court will take evidence from both sides to determine whether the objecting birth parent is acting contrary to the child’s best interests. In my experience, most birth parents that have been uninvolved in the child’s life may start out objecting to the adoption but come around when faced with the prospect of litigation. Additionally, that birth parent will no longer be obligated to pay child support following the adoption.

Generally, these adoptions tend to be less expensive, but as in any case, the cost is associated with the complexity of the issues presented. The more information that you possess regarding the parent whose rights are to be terminated and their willingness to consent to the adoption, the easier the process is likely to be.

Next time, we’ll discuss “Adoption Agencies and Facilitators – What you need to know.”

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