Following a divorce or separation when there are children involved, there may still be questions and uncertainties that arise while moving forward as a family unit. This is particularly true if, after a while, you or your ex-spouse remarries because now, there will be a stepparent(s) in the picture. In fact, if you remarry and your new spouse develops a relationship with your child, then your spouse may consider adopting your child to establish their legal rights and obligations to the child. Here’s how adopting a stepchild works in Virginia.
What Is A Stepparent Adoption?
Even though your stepchild may live in the same house with you, treat you like a parent and you treat them as if they were your own child, there is still no recognized legal relationship with the child. This means that you have no duty to support your stepchild nor do you have any entitlement to custody and/or visitation of the child. You also have no legal right to make emergency decisions on behalf of your stepchild. Therefore, in order to obtain these rights and obligations, you must legally adopt your stepchild.
However, by legally adopting your stepchild, the rights and obligations of the stepchild’s other parent (not your spouse) will be terminated, which is not always easy or permitted by the court.
How To Obtain A Stepchild Adoption
Under Section 63.2-1241 of the Virginia Code, you must first file a petition seeking to adopt your stepchild in the circuit court for either (a) the county in which the other birth parent and their spouse reside, or (b) the county in which the stepchild resides. This petition will be filed jointly by you and your spouse—the biological parent of your stepchild—so that your spouse’s consent to the adoption is verified.
Simple, Uncontested Adoption
If the biological parent whose parental rights are to be terminated through the adoption is (a) dead, (b) willing to consent to the adoption, or (3) the identity of the biological father is completely unknown, then the adoption may be fairly simple. The court will have discretion to either enter a Final Order of Adoption, which occurs frequently if your stepchild has lived with you for three (3) years or more; or, the court will enter an Order of Reference that directs a local licensed child placement agency or the Department of Social Services to conduct a 60-day investigative report on your fitness to be a parent to your stepchild and a home study. If the results of the report are satisfactory, then the court will enter an Order of Adoption.
Identity Of The Birth Parent Is Known But Their Location Is Unknown
If the identity of your stepchild’s other birth parent is known but you have no clue where they are living or how to get in touch with them, then the adoption process becomes slightly more complicated. If you and your lawyer’s attempts to pinpoint a last known address of the birth parent fail, then the matter will need to be set for a hearing before a judge. In addition, your attorney will need to check the putative father registry in Virginia, as well as any other states where the biological father is known to have lived, and a notice of publication must be published in the appropriate newspaper for four (4) weeks. The idea behind this publication is to possibly give notice to the parent of your petition for adoption so that they may respond and/or appear in court.
If none of these attempts to locate your stepchild’s biological parent work, then at the hearing the judge may order that additional steps be taken to locate the missing parent. Otherwise, if the judge is satisfied that all attempts have been exhausted and that your notice of publication was sufficient, the court may enter an Order of Adoption.
Virginia’s Abandonment Law
If the identity of the birth parent is known but clear and convincing evidence establishes that this parent has failed to have any contact with your stepchild for a minimum of six (6) months prior to the filing of your petition for adoption, then the court may terminate that parent’s parental rights. This will open the door for you to obtain a simple Order of Adoption. However, the abandonee parent must be served with notice of the adoption proceeding and an opportunity to be heard at the adoption proceeding. This is true, even if the whereabouts of the abandonee parent are unknown. In this situation, you must follow the steps above for notifying a parent whose location is unknown.
What If My Stepchild’s Parent Objects To My Adoption?
If the identity and location of the birth parent is known but they object or do not consent to your desire to adopt your stepchild, then the adoption becomes a contested proceeding. Under these circumstances, an evidentiary hearing will be set by the court wherein you and your spouse along with your stepchild’s other parent will offer testimony and evidence on why the adoption is and is not in your stepchild’s best interests. Because the law favors the rights of biological parents who are involved in their child’s life, obtaining an adoption against an objecting parent will be extremely difficult – unless you can clearly show that adoption is in your stepchild’s best interest.
As you can see, there are many ways in which to adopt your stepchild, but the process can become highly involved or complex if the biological parent’s location is unknown or they object to the adoption. For this reason, you should consult with a qualified family law attorney if you are considering adopting your stepchild or have already begun the process. The family lawyers of the DiPietro Family Law Group have decades of experience handling stepparent adoptions and all other family law issues in jurisdictions across Northern Virginia and Washington, DC. Contact us today for a consultation at (888) 530-4374.