HB 451 amended Virginia Code 63.2-1203 to include a requirement that a parent who does not consent to the adoption of the child, but whose consent to the adoption is required under Virginia Code 63.2-1202, shall be given notice of his/her right to counsel and if determined indigent shall be appointed counsel.
When adoptions are executed, one or both of the biological parents’ rights are terminated. The United States Supreme Court has stated that a parent has a constitutional right to the care, custody, and control of his/her child so long as the parent asserts his/her rights. Terminating the rights of a parent is the death penalty of family law. The additional language to this law seeks to protect each parent’s constitutional right and to ensure parental rights are not unjustly terminated.
Having represented parents seeking to adopt as well as parents seeking to maintain and assert their parental rights, I can say without a doubt that this law has major and practical implications in the execution of adoptions.
Let me provide an example of how this law could give an uninvolved parent an arguably unfair advantage. A common fact scenario in stepparent adoption cases is that one of the biological parents has not sustained a regular, consistent, and healthy relationship with the child. When an adoption attorney meets with the custodial parent seeking to have their new spouse (now a stepparent) adopt the child, the lawyer first refers to Virginia Code 63.2-1202.
When Is The Consent Of A Biological Parent Necessary?
Virginia Code 63.2-1202 establishes when the consent of a biological parent is necessary. In the example above, the attorney would question how long the non-custodial biological parent has gone without visiting or contacting the child. If the parent says contact and visitation has not occurred in more than six months then Virginia Code 63.2-1202(H) comes into play, as it states:
No consent shall be required of a birth parent who, without just cause, has neither visited nor contacted the child for a period of six months immediately prior to the filing of the petition for adoption or the filing of a petition to accept consent to an adoption. The prospective adoptive parent(s) shall establish by clear and convincing evidence that the birth parent(s), without just cause, has neither visited nor contacted the child for a period of six months immediately prior to the filing of the petition. This provision shall not infringe upon the birth parent’s right to be noticed and heard on the allegation of abandonment. For purposes of this section, the payment of child support, in the absence of other contact with the child, shall not be considered contact.
If contact and visitation has not occurred for more than six months then a Petition For Adoption can move forward and technically under 63.2-1202(H) the non-custodial parent’s consent is not necessary. Practically speaking, there is a possibility that once the non-custodial parent gets the required notice of the proceedings (s)he may appear and contest the adoption. Reading Virginia Code 63.2-1203 strictly, the non-custodial parent in the above example would not be entitled to appointed counsel if (s)he was indigent, because his/her consent is not necessary under 63.2-1202. But there exists a very real possibility that the judge would err on the side of caution and appoint counsel for the indigent parent who is contesting her/her abandonment or the adoption. The outcome of terminating the parent’s rights, while in many instances appropriate, is so severe that judges will sometimes provide for added protection of one parent’s constitutional rights to ensure the correct result is reached.
Providing counsel to an indigent parent increases the number of hurdles for the custodial parent and/or adopting parent to overcome, including but not limited to, slowing down the adoption process and increasing litigation costs. Any custodial parent and/or adopting parent should not be deterred from moving forward by this new law, but should consult with an experienced adoption attorney about the facts and circumstances of their specific case and what the process will likely entail.