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Third-Party Custodians and Adoption in Virginia

Virginia CodeIn Virginia, a grandparent, relative, or other interested party may seek and receive a court order granting them legal and physical custody of a child in their care. Such an order would give the custodian a feeling of security that the child cannot be taken from them unless a parent seeks to modify the custody order, in which case the custodian would presumably have an opportunity to object and have their day in court. However, under the Virginia Adoption Statute, that may well be a false sense of security. Under that act, parents who have lost custody nevertheless maintain their residual parental rights, including the right to consent to an adoption. The end result, as I will explain in detail below, is that third-party custodians with legal custody may actually lose the children in their care to an adoption without any notice or opportunity to object.

Per Virginia Code § 16.1-228, the rights of a legal custodian in Virginia are “all subject to any residual parental rights and responsibilities,” which that code section defines as

all rights and responsibilities remaining with the parent after transfer of legal custody or guardianship of the person, including but not limited to the right of visitation, consent to adoption, the right to determine religious affiliation and the responsibility for support

(emphasis added). Therefore, while a third-party custodian may have gained physical and legal custody of the child in their care, the parents still maintain the right to consent to the adoption of that child.

This brings us to the Virginia Adoption Statute. Adoption is a creature of statute only and is strictly construed. In a parental placement adoption, Virginia Code § 63.2-1202 sets forth the parties from whom consent is required, which include: (a) the birth mother; (b) the father, if he is an acknowledged father under § 20-49.1, an adjudicated father under § 20-49.8, a presumed father under § 63.2-1202(D), or has registered with the Putative Father Registry; and (c) “the child-placing agency or the local board having custody of the child, with right to place him for adoption.”

Notably, third-party custodians are not listed as persons whose consent is required. They are also not listed as individuals who must be noticed in an adoption proceeding.

Because custody is subject to the parent’s residual parental rights, including their right to consent to an adoption, there do not appear to be adequate protections for third-party custodians in Virginia, even those who have been granted legal custody by a court. As shown above, there is not adequate protection under the Virginia Adoption Statute, and Virginia’s appellate courts have not spoken on this matter to offer any protection by way of interpretation of the statute.

All of which raises the question: should custodians be given notice to an adoption consent hearing? And if so, what would that hearing look like? The statutory scheme for parental placement adoptions in Virginia does not seem to anticipate this. In a parental placement adoption, the proceedings begin in the juvenile and domestic relations court to approve the home study and consent. If the home study and other requirements set forth in the statute are met, then the court “shall accept the consent and transfer custody of the child to the prospective adoptive parents.” Once the consent is accepted, the adoption petition is filed and the circuit court will enter an interlocutory order granting the adoptive parents all the rights of parents. The final adoption order is then signed once the final statutory requirements are met.

By contrast, many states have adoption statutes that require consent or at least notice to custodians. Without such a provision in Virginia, custodians in the Commonwealth are left hoping the individual judge will grant a “motion to intervene.”

Virginia Supreme Court Rule 3:14 provides that “[a] new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding.” This rule applies to all civil cases in Virginia, which would include adoptions. It would thus seem that custodians would have standing to intervene as necessary parties, and a due process right to notice, in adoption proceedings regarding the child in their care. However, the absence of case law on this matter leaves this open for argument.

In the juvenile domestic and relations district court, in a parental placement adoption, custody is transferred to the adoptive parents during the consent hearing. The statute does not require custodians to give consent, and only sets forth a notice requirement for biological parents. If the home study and statutory requirements are met, only if a biological parents refuses to give consent does the court conduct a hearing to determine whether or not the consent is being withheld contrary to the best interest of the child. In making that determination, Virginia Code § 63.2-1205 requires the court to consider all relevant factors, including:

  • the efforts of the birth parent(s) to obtain or maintain legal and physical custody of the child;
  • whether the birth parent(s) is/are currently willing to assume full custody of the child;
  • whether the efforts by the birth parent(s) to assert parental rights were thwarted by other people;
  • the ability of the birth parent(s) 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.

It is noteworthy that these factors are focused on the relationship between the birth parent(s) and the child, not on the relationship between any custodians and the child. § 63.2-1235 also sets forth what process the court is to follow if the court determines that “placement in the prospective adoptive home will be contrary to the best interest of the child.”

In conclusion, Virginia law as it currently stands allows parties to file and process an adoption of a child in the custody of a third party, without any clear requirement for notice to the custodian or an opportunity for the custodian to object. The custodian is left fighting for the right to intervene, and demanding notice under principles of due process. If the custodian is successful on those grounds, there remain the final hurdles—limitations on what role and influence custodians can have in the proceeding, and overcoming the parents’ right to consent to the adoption of their child. Until the adoption statute is amended or case law is established to secure protections for third-party custodians and the children being raised by third parties, neither appears to be adequately protected.

If you are a third-party custodian of a child involved in adoption proceedings, be sure to consult with an experienced family law attorney to review your options. The adoption lawyers at Livesay & Myers, P.C. are experienced with adoptions in jurisdictions across Northern Virginia. Contact us to schedule a consultation today.