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Contested Adoption and Consent

Adoption is usually a happy event, for both the adoptive parents and the child. In most instances, a foster child is being granted a permanent home, or a stepparent wishes to legalize his or her relationship with a child whose other birth parent is deceased or unwilling to participate in the child’s life.

When the birth parent terminating his or her rights to a child consents, the process is uncontested and relatively uncomplicated. The end result is a court order entered by the circuit court terminating the birth parent’s rights and establishing the legal relationship between the child and the adoptive parent(s).

However, sometimes a stepparent or third-party adoption is attempted after contested custody and visitation litigation between the child’s birth parents, which can lead to a contested adoption proceeding.

The U.S. Supreme Court has held over many decades that a birth parent’s right to parent his or her child is supported by the Due Process clause of the Fourteenth Amendment. Parenting one’s child is considered a liberty interest that requires a very high bar to overcome.

Following those decisions, including Troxel v. Granville, 530 U.S. 57 (2000), Virginia has enacted laws requiring the consent of the birth parent whose rights are being terminated. If the birth parent refuses to consent, then the Code of Virginia, as upheld by the Supreme Court of Virginia in Copeland v. Todd (2011), requires the courts to weigh statutory factors to determine whether the birth parent is withholding consent contrary to the best interests of the child.

The U.S. Constitution and the laws of Virginia require both a finding of parental unfitness and a finding that a third-party adoption would be in the best interests of the child. The applicable statute is Virginia Code §63.2-1205, and the listed factors are:

  1. the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child;
  2. whether the birth parent(s) are currently willing and able to assume full custody of the child;
  3. whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people;
  4. the birth parent(s)’ ability to care for the child;
  5. the age of the child;
  6. 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;
  7. the duration and suitability of the child’s present custodial environment; and
  8. the effect of a change of physical custody on the child. 

The factors that govern this determination are discrete from the custody and visitation factors listed in Virginia Code §20-124.3. The difference is that the above factors related to adoption were drafted to evaluate the required element of parental unfitness.

There are some exceptions to the requirement of consent. Notably if a parent abandons his or her child as exhibited by a period of six months without contact or visitation, the Virginia Code and applicable case law equates such abandonment to unfitness. These exceptions are enumerated in Virginia Code §63.2-1202.

Stepparents and other third parties with a legitimate interest in the child’s life have avenues to adopt a child in our system. However, case law and public policy indicates that the adoption laws in the Commonwealth were not enacted to bypass the custody and visitation processes and procedures for birth parents who wish to remain in their child’s life.

If you have questions about a contested adoption case where the biological parent does not consent, be sure to consult with a knowledgeable family lawyer in your area. The family law attorneys at Livesay & Myers, P.C. are experienced with adoptions in jurisdictions across Northern Virginia. Contact us to schedule a consultation today.