Virginia Step-Parent Adoption: Completing the Family

As always, please review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Update (4/27/18):  Some of the information contained in this post is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

In today's world, more and more children are growing up with step-parents.  Step-parents often feel like full parents, yet frequently no one else treats them that way.  Fortunately, for the right situations, the law in Virginia makes it fairly easy for a step-parent to actually legally adopt their step-child.  This can be a very life-affirming, enriching decision, and is one of the most rewarding practices I have engaged in during my legal career.  In today's post, I hope to discuss what situations warrant a step-parent adoption, how the process differs from a "normal" adoption, and some considerations.

When A Step-Parent Can Adopt

The situations in which a step-parent can adopt a minor step-child are laid out in Virginia Code Section 63.2-1241.  There are two conditions required for a step-parent adoption.  First, the spouse of the step-parent (so, the biological or adoptive parent of the child whose marriage makes the step-parent a step-parent) must consent to the adoption and indicate that consent by actually joining the step-parent's petition.  The second condition is that one of the following eight situations must apply:

1. The second birth parent or adoptive parent is dead,
2. The second birth parent or adoptive parent consents to the adoption,
3. The second birth parent is the father of the child and he denies paternity,
4. The first birth parent is the mother and she swears under oath that she does not know who the father is and that his identity cannot reasonably be discovered,
5. The child is the result of surrogacy and the second birth parent consents to the adoption,
6. The step-parent's spouse is the adoptive parent of the child, was unmarried at the time of the adoption, and as a result there is no other parent,
7. The child is at least 14 years old and has lived in the step-parent's home for at least five years, or
8. The second birth parent or adoptive parent does not consent to the adoption, but the Circuit Court, after a hearing, determines that the second parent's refusal to consent to the adoption is contrary to the best interests of the child.

Now, it should be noted that by far the most common situations for step-parent adoptions are situations 1 and 2 above, but it is worth noting that the other possible situations exist.  Because of their infrequency, I will not cover situations 3 through 7 in this blog post, but the process I describe below will be largely similar for those situations - there just may be one or two minor differences.  While situation 8 is also rare, it is the only one that likely requires a court appearance, and so I do think it is worth covering briefly.

Second Parent Refuses Consent for Adoption

The adoption of your child by someone else terminates your rights as a parent of that child.  As far as the law is concerned, you are no longer that child's parent.  You get no visitation rights, no elder support rights, no inheritance rights, no hospital visit rights, and the list goes on.  As a result, for many parents, the thought of a child's step-parent (who is a step-parent due to marriage with the other parent) is not something the parent can support.  Unless situation 7 above applies, however, the parent's refusal to consent to the adoption will probably prevent the adoption.  Even if situation 7 does apply, the parent can still step in and object, and there is a reasonable chance they can still prevent the adoption.

There is a public policy in Virginia that it is always in a child's best interest to have a relationship with both parents, and "primary consideration" is given to the birth parents.  This means that, where there is no consent, the court will likely not approve a step-parent adoption, removing one of the biological parents from the picture, unless there is some evidence that the other parent is actually unfit to remain a parent.  This could be something like abuse, neglect, or desertion.  If the other parent hasn't utilized his visitation in 8 years, then that's one thing.  If the other parent is still a part of the child's life, however, either with or without court-ordered visitation, it is just extremely unlikely a court will find that the refusal of consent was not in the child's best interest.

As a result, the main reason that this situation is so rare is that adoptions in this situation are rarely successful.  If the other parent cares enough to object, the chances are the other parent has remained involved enough to prevent the adoption and so no adoption will even be attempted.  If the other parent is so uninvolved in the child's life as to warrant an adoption over that parent's objection, usually the other parent will either consent to the adoption, or not respond to the petition for adoption (which gets treated as consent).

Process Basics

A step-parent adoption, process wise, is dramatically different from a "normal" adoption.  There is no home study done, no guardian ad litem appointed for the child, no report from the Department of Social Services, rather the process is extraordinarily simple.  Specifically, the step-parent and the step-parent's spouse must submit their petition to the circuit court for the county or city in which they reside, along with evidence that one of the eight conditions above applies (death certificate for 1, signed affidavit of other parent for 2, etc.), a draft Final Order of Adoption, a completed Virginia State Form VS-21, and the applicable filing fees.  As long as all paperwork is completed properly, unless the Court feels that further investigation is required (very rare), the Final Order of Adoption should be signed and returned to you within a matter of three or four weeks.  The adoption is official as of the date of signing the Final Order of Adoption, and like all adoptions in Virginia the records of the adoption are sealed.

Some Considerations:  Child Support

One of the first things you need to be aware of before deciding to do a step-parent adoption is the adoption's effect on child support.  If your spouse is receiving child support from the child's other parent, you should be aware that the other parent will be in his or her rights to terminate child support immediately upon the completion of the adoption.  This is because once that parent is no longer legally considered a parent, that parent's duty to support the child ends with the ending of that person's parentage.  If your family relies on child support to help make ends meet, this is something to seriously think about before doing a step-parent adoption.

Some Considerations:  Other Relatives

Another factor to consider is that step-parent adoption is different from other adoptions in terms of its impact on other family members.  Specifically, in a normal adoption, family members of the parent(s) giving up the child are also no longer considered family, and as such have no family rights at all.  Virginia Code Section 63.2-1215, however, carves out an exception for step-parent adoptions.  In the case of step-parent adoptions, only the rights of the other parent are terminated, but the rights of that parent's family members are not - meaning that, legally speaking, the child retains his or her former grandparents, uncles, aunts, siblings, etc.  This is important because those family members retain the right, if they believe the situation warrants it, to sue for visitation with, and even custody of the child.  The child, however, also retains his or her inheritance rights from those family members, along with hospital visitation rights, and other legal advantages given to familial relationships.  It is also important to note that this exception largely does not go the other way.  The child, specifically, will not owe any duty to those family members that he or she may have without the adoption.

A Note About Adult Adoption

So, let's say you decide you can't afford to give up child support, or the other parent objects to the adoption and you know you cannot win over that parent's objection, but you still want to adopt the child some day.  Most people do not realize that you actually can, in some circumstances, adopt as your legal child an adult.  There are legal benefits to a parent-child relationship that extend beyond the minority of the child - hospital rights, inheritance rights, tax treatments, etc. - and as a result, Virginia has created laws that allow for adult adoption.

There are four situations in which an adult adoption is allowed, two of which apply here.  Specifically, adult adoption is allowed by a step-parent who has acted "in loco parentis" (in place of the parents) for at least three months, or by a step-parent (or other adult, for that matter) in whose house the child had resided for at least three months prior to turning eighteen.

Now, if one of those conditions is met (and pretty much any step-parent who would want to do an adult adoption will at least meet one of them), because the child is now considered an adult, the court's paternalistic instincts are gone.  Instead, only one question is asked - does the child consent to the adoption?  If the answer is yes, the adoption will be approved no matter who else objects, even if both natural parents object.  The only exception would be if it is proven that the child, while an adult, still lacks the mental capacity to make such a choice (a very hard thing to prove).  If the answer is no, then the court is absolutely barred from granting the adoption.

Conclusion

While the process for a step-parent adoption in Virginia is easy, the paperwork is complicated and hard to get right.  As a result, it is a good idea to have an attorney when going through this process.  If you are interested in a step-parent adoption, or in objecting to a step-parent adoption, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!