Overview of Virginia Laws (Q&A)

Can non-residents adopt?

Yes, if the birth parents are Virginia residents.

Is independent (non-agency) adoption legal in Virginia?

Yes.

Is advertising permitted?

Yes.

Can a paid intermediary such as an attorney locate a child for the adoptive parent?

No (fn.1).

What expenses can be paid?

Legal fees and medical expenses (fn.2), food, lodging, and maternity clothes (fn.3).

Is a pre-placement home study required?

Yes (fn.4).

Are the adoptive parents required to disclose their identities to the birth parents?

No.

Can a birth parent sign a consent prior to the birth?

A birth mother cannot sign before the birth, but a birth father can if he is not married to the birth mother.

How long must a birth mother wait after the birth before signing a consent?

3 days.

Where does a birth parent sign the consent?

In court (fn.^5).

When does a consent become irrevocable?

Once 10 days from the child's birth have elapsed.

Do adoptive parents normally receive the child directly from the hospital?

Yes.

What is required to facilitate the child's discharge from the hospital?

Depends on individual hospital policy.

When can the adoption be finalized?

Usually takes at least 6 to 8 months.

Is it a requirement that a separate attorney represent the birth parents?

No (fn.6).

Are any extra steps required when the child is born in a state other than the one in which the adoptive parents reside?

Yes (fn.^7).

Footnotes

1. For example, an attorney who is being paid for representing either the adoptive parents or the birth parents cannot refer the birth parents and the adoptive parents to each other or engage in such activities as showing a birth parent resumes of adoptive parents.
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2. The cost of psychological/social work counseling for the birth parents is considered to be a medical expense. Back to top /\

3. Effective 7/1/93, Virginia law was expanded to permit payment of food, lodging, and maternity clothes in reasonable amounts as long as the birth mother has a statement from a physician which establishes that the birth mother is unable to support herself due to the pregnancy. Back to top /\

4. While Virginia law does not technically require a pre-placement home study before the adoptive parents take physical custody of the child, the birth parents cannot sign the adoption consent and the adoptive parents cannot obtain a legal custody order until the home study is finished. Consequently, there is a strong incentive for Virginia adoptive parents to complete a home study either before or immediately after the child's birth.
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5. In Virginia, a birth father who is not married to the birth mother is allowed to sign his consent outside of court. Back to top /\

6. Although not required by law, the better practice is to always insist that the birth parents have an attorney separate from the attorney representing the adoptive parents. Ethics rules prevent one attorney from representing both sides in an adoption. To proceed with only one attorney and assert that the attorney only represents the adoptive parents is a dangerous fiction. Someone needs to explain the process to the birth parents and advise them of their rights. If the person giving the advice is the attorney who represents the adoptive parents, a potentially fatal defect has been built into the adoption. Under those circumstances, a birth parent could seek to overturn the adoption long after the placement based upon duress relating to the attorney's conflict of interest. Back to top /\

7. The ICPC provides that a child cannot be taken across state lines for purposes of adoption unless ICPC approval is obtained. Experience shows that the adoptive parents can expect to remain in the other state with the newborn child for 3 to 14 days or more after the birth while the adoptive parents' attorney attempts to obtain ICPC approval. The ICPC process and the extra attorney services are not required if the birth occurs in the state where the adoptive parents reside. Back to top /\

Background of Virginia Adoption Laws

I. Brief history back to 1989 changes

A. In the last two decades, independent (non-agency)  adoption (which is called parental placement adoption in  Virginia) has become much more prevalent.

B. In Virginia, independent adoption was restricted in certain ways prior to 1989.

Nationwide experience shows that birth parents and adoptive parents in independent adoptions identify each other about 50% of the time through word-of-mouth contacts and about 50% of the time through newspaper advertisements.

Prior to 1989, the law in Virginia did not permit parties to identify each other through word-of-mouth.

Prior to 1989, some people (including public officials) advanced the erroneous notion that newspaper advertising was also not permitted under Virginia law.

C. Effective 1989, Virginia adoption law was significantly revised and a system which forms the basis for current   practice was implemented.

It is now clear that birth parents and adoptive parents can legally identify each other through both word-of-mouth and newspaper advertising.

Agency adoption and independent adoption procedures (e.g. revocation periods) are now set up so that the legal procedures are parallel and there is no legal advantage to one type of adoption over the other.

D. Minor changes to the adoption law in Virginia have been made over the years since 1989 and a more significant set of changes were made effective 7/1/06.

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II. Agency Adoption - Public and Private

A. Agency adoption in Virginia is conducted through either public child placing agencies (e.g. county department of social services) or private agencies (licensed childplacing agencies privately owned and operated). Residents of Virginia may work with public and private agencies located in Virginia or operating outside of the state.

B. In an agency adoption, a birth parent relinquishes his or her parental rights to the adoption agency by executing a consent in favor of the agency. The agency then proceeds to terminate the parental rights of the placing birth parent(s). The agency places the child for adoption with adoptive parents selected by either the birth parent(s) or the agency.

Following a required post-placement supervision period, the agency gives its consent to the adoption to the adoptive parents. The adoptive parents proceed to finalize their adoption by filing a petition for adoption in the circuit court in the county where they reside.

During the period of post-placement supervision following the placement of the child, the agency retains legal custody of the child while the adoptive parents retain physical custody. In the majority of agency adoption placements, either public or private , the child is placed directly with the adoptive parents following his or her birth. However, a newborn child may be placed in foster care during the period of time that the parental rights of the birth parent(s) are being terminated.

C. The adoption of children who have been placed in foster care is conducted as an agency adoption. In those cases, the county department of social services acts in its capacity as a public child placing agency and works to terminate the parental rights of the biologic parents. The agency may then place the child for adoption with an existing foster family or another family selected to adopt the child.

D. The legal procedures for carrying out an agency adoption are found in the Virginia Code.

A birth parent wishing to place a child for adoption through an adoption agency must execute an entrustment agreement which provides for the termination of all parental rights and responsibilities.

An entrustment agreement terminating parental rights may be revoked by a birth parent up to the time the child has reached the age of 25 days and 15 days have elapsed from the date of execution of the agreement. Additionally an    entrustment agreement is revocable prior to the entry of a final order of adoption upon a showing of fraud or duress.

A birth parent's revocation of an entrustment agreement to an agency must be in writing and signed by the birth parent.

E. Adoptive parents who receive a child through a Virginia adoption agency will file a petition for adoption in the circuit court in their county of residence after (a) the child has resided in their home for at least 6 months and (b) they have been visited by their agency three times within that 6-month period.

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III. Parental Placement Adoption

A. Birth parents in Virginia may also place a child directly with adoptive parents. In a parental placement adoption, the birth parent consents directly to the adoption of his or her child by the chosen adoptive parents. Legal custody of the child passes directly from the birth parent(s) to the adoptive parents.

B. Parental placement adoption in Virginia is governed by the Virginia Code.

In Virginia, adoptive parents may learn of birth parents either through word-of-mouth contacts or newspaper advertisements.

If adoptive parents choose to pursue a parental placement adoption, they must undergo a home study by a licensed child-placing agency in Virginia.

In a parental placement adoption, the attorney representing the birth mother will often make arrangements with the hospital where the child is to be born so that (a) the adoptive parents will have access to the child in the nursery following birth and (b) the child will be discharged directly to the adoptive parents.

When the child to be adopted is at least 3 days old, the birth mother will execute her consent to the adoption before a judge of the Juvenile and Domestic Relations District Court and in the presence of the adoptive parents. The court may accept the consent of the birth mother only after making specific findings as set forth in the Virginia Code.

Prior to the court's acceptance of the birth mother's consent, the adoptive parents and the birth mother must participate in a joint counseling session conducted by the agency that prepared the home study.

Just like the birth mother, the birth father of the child to be adopted may participate in the consent process by (i) participating in the joint counseling, and (ii) appearing in court to execute his consent to the adoption. However, the consent of a birth father in court, who is not married to the mother of the child at the time of the child's conception or birth, is not necessary if

(a) the birth father consents under oath and in writing to the adoption outside of court;

(b) the birth mother affirms in writing that the identity of the birth father is not reasonably ascertainable;

(c) the birth father's whereabouts are unknown and he is given notice of the proceedings by registered or certified mail to his last known address and fails to object to the proceeding within 15 days of the mailing of the notice;

(d) the birth father named by the birth mother denies paternity of the child under oath and in writing.

Upon the acceptance of the birth parent(s) consent(s), the Juvenile and Domestic Relations District Court will transfer legal custody of the child to the adoptive parents.

A birth parent executing his or her consent to an adoption may revoke that consent for any reason for up to the time when the child is 10 days of age. A revocation must be in writing, signed by the revoking birth parent or attorney representing that birth parent and filed with the clerk of the court in which the consent petition was filed.

C. Adoptive parents who have received a child through a parental placement adoption, will file a petition for adoption in the circuit court in the county where they reside.  The circuit court will enter an interlocutory order which triggers a mandatory 6-month probationary period. During that 6-month period, the adoptive parents must undergo three post-placement visits by the child-placing agency that conducted their home study. Following the completion of the visits, and the 6-month period, the agency will prepare a report of visitation which will be filed with the court. The court may then enter a final decree of adoption.

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IV. Stepparent Adoption

A. The adoption laws of Virginia contain a specific section pertaining to step-parent adoptions.

B. Under Virginia law, a stepparent wishing to adopt a child of his or her spouse must file a petition for adoption in circuit court seeking to adopt the child. The court may proceed to immediately finalize the adoption without referral of the matter for further investigation, if the other birth parent of the child consents in writing to the adoption or is deceased.

C. The circuit court retains the discretion to order an investigation before a final order of adoption is entered.

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Ethical Considerations

I. Ethical considerations are important in all areas of the law. In the area of adoption law, they take on a heightened importance. Unjustifiably, the area of independent (non-agency) adoption is surrounded by the perception that the activity is somehow of borderline legality. The phrases "blackmarket" or "greymarket" are frequently, but inaccurately, used to describe independent adoption. In an effort to combat and eliminate this misperception, it is important that adoption lawyers take great care in order to avoid even the possible appearance of impropriety.

II. One area in which problems most frequently arise is that of conflict of interests. In any adoption proceeding there are a number of potentially conflicting interests. In an independent adoption proceeding, the interests of the birth parents, the adoptive parents and the child to be adopted are potentially conflicting. Recognition of this is contained in American Bar Association Informal Opinion No. 87-1523 (Feb. 14, 1987) which prohibits an attorney from representing both sides of an adoption proceeding.

III. In agency adoptions, there is an additional potentially conflicting interest --that of the agency itself. It is only natural for both adoptive parents and birth parents who approach an agency to place trust in the representatives of that agency since the agency is licensed by the state and since the matter involved is one which requires a degree of trust. If the agency in question has an attorney either in-house or employed as outside counsel, it would be logical but extremely dangerous for either the birth parents or the adoptive parents to assume that the attorney for the agency can give legal advice to them.

A. Far too often, both birth parents and adoptive parents engage in the important legal transaction called an adoption without the benefit of any legal counsel whatsoever independent from the attorney representing the agency.

B. Our neighboring state of Maryland recognizes this conflict by a specific statute which prohibits simultaneous representation of parties in an adoption.

IV. Although it is recognized that an attorney cannot represent more than one side in an adoption, there is nothing in Virginia law which requires separate counsel for a birth parent even if the birth parent is under 18 years of age.

A. The above leads some practitioners to contend that although there is only one attorney involved, he or she represents the adoptive parents and the birth parents simply have no attorney. This is extremely dangerous. Either the birth parents are being advised by the adoptive parents' attorney (which is a conflict) or the birth parents have no one to explain to them even the most rudimentary aspects of the legal transaction.

B. The better practice is to insist that the birth parents be represented by their own separate attorney in each case. If the attorney representing the adoptive parents is managing his or her case properly, there should never be a case in which birth parents are allowed to say they wish to proceed without counsel. The adoptive parents should be advised to stand their ground and not compromise on this important point.

Mark T. McDermott

Law Office of Mark T. McDermott
Suite 800
910-17th St., NW
Washington, DC 20006
202-331-1440
202-331-1442 (FAX)

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