Most people are familiar with the concept of adoption—and many may have some idea that adoption standards can differ depending on the preexisting relationship between the adoptive parent and child. But what are those standards, where do they come from, and is it difficult for a close relative (but not a parent) to effectuate an adoption?
First, it is important to know that Virginia defines a close relative adoption (or placement) as
an adoption by the child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, adult great uncle or great aunt, stepparent, adult stepbrother or stepsister, or other adult relatives of the child by marriage or adoption.”
Second, the category of “close relative” adoption is subsequently divided into two categories: those where the child has resided in the home of the prospective parent for two years or more, and those where the child has resided in the home of the prospective parent for less than two years.
If the former category applies, several of the normal statutory requirements for an adoption are eliminated. When the child has continuously resided in the home or has been in the continuous physical custody of the prospective adoptive parent(s) for two or more years, the court may omit the usual probationary period and interlocutory (temporary) order. In this circumstance, an order of reference, an investigation and a report are not necessary unless the court demands them, and the court may even waive appointment of a guardian ad litem for the child.
Functionally, this operates to eliminate ordinary adoption requirements in light of the child’s extensive time with the prospective adoptive parents.
Parental Consent
However, close relative adoptions do not eliminate the requirement of parental consent. The usual vehicle to obtain consent is by a signed and notarized consent form, but this is only useful in cases where the parent(s) relinquishing parental rights give their consent to the adoption. In cases where adoption is requested over a parent’s objection, things become much more difficult.
Proper service of process is very important in these cases, as it is in all cases. This can be challenging in instances where a biological parent cannot be located.
Once service is accomplished, the court engages in a kind of best interests of the child analysis, similar to parental custody cases, but with the source factors being listed in Va. Code § 63.2-1205.
In determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, or is unobtainable, the circuit court or juvenile and domestic relations district court, as the case may be, shall consider whether granting the petition pending before it would be in the best interest of the child. The circuit court or juvenile and domestic relations district court, as the case may be, shall consider all relevant factors, including the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people; the birth parent(s)’ ability to care for the child; the age of the child; the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child.”
Virginia courts, in particular the Court of Appeals and Supreme Court of Virginia, have crafted precedential caselaw regarding close relative adoptions based on the examination of these factors. That caselaw is too lengthy to explore here, but is substantial and helpful in fleshing out the application of § 63.2-1205.
The combination of the language of § 63.2-1205 and the caselaw provided by Virginia courts provides a thorough, well-conceived roadmap to grant adoption of minor children to close relatives. However, this roadmap involves many intricacies and requirements that one must be aware of when engaging in the process.
If you are a close relative of a child you would like to adopt, or if you are a biological parent who is trying to prevent a close relative adoption that is contrary to your wishes, be sure to discuss your options with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with adoptions of all kinds and how they are handled in the courts of Northern Virginia. Contact us to schedule a consultation today.