Stepparent Adoption; Biological Father Uninvolved or Unknown in Virginia

When a parent of a child marries or remarries, there are lots of changes that happen to create a new family dynamic.  The stepparent may want to adopt his spouse's child as his own.  There are several different situations in which adoption becomes the best decision for this newly formed family.  There are, however, a few obstacles that could prevent this from being an uncomplicated process. 

I am often asked by people who are in long term relationships whether they can adopt the other partner's biological child.  At present, if they were to do that, it would terminate the parental rights of the biological parent, which is not the goal.  Under Virginia law, the couple has to marry in order for this adoption to add a parent, without subtracting the biological parent. 

Next, the child must be legally free for adoption.  What does this mean? Under Virginia law, as in other states, you have to consider the parental rights of the other biological parent.  

If the biological parent gives consent, then the process is straightforward.  The parent's consent document is filed with the Petition for Adoption along with a proposed Final Adoption Order in the Circuit Court.  In most cases, the Final Adoption Order is entered without a hearing fairly quickly.  Some courts will order an investigation by the County Department of Social Services, which will add two months to the process.

Four Categories of Birth Fathers 

The birth father who is listed on the child's birth certificate is an acknowledged father. If the father is not listed on the child's birth certificate, we must determine whether the biological father has ever been adjudicated as a father through a paternity test or child support order.  Alternatively, were the biological parents married but for some reason, the father was not listed on the birth certificate? 

Another category of birth fathers that have the right to notice of the adoption plan are those who have properly registered with the Virginia Putative Father Registry or the Putative Father Registry in the state where the child was conceived or born.  More information on the Virginia Putative Father Registry can be found at the Virginia Department of Social Services which maintains a data base of those who have properly registered to receive notice of any potential adoption plan:  http://www.dss.virginia.gov/family/ap/putative_fatherhood.cgi

If there is a birth father who qualifies under one of these four categories, then we either need to obtain his consent or the Court will hold a best interests hearing to determine if he is withholding his consent contrary to the best interests of the child.

Abandonment

However, in many situations, the birth father has not been in touch with the child for years.  In some instances, there is a child support order in place but there has been no visitation or contact with the child. Often, we do not even know where the birth father is living anymore.

Virginia has an abandonment statue where if the biological parent hasn't visited or contacted the child for the six months prior to filing the case, the Court may hold a hearing and determine that that parent's consent is no longer necessary.  There is a higher evidentiary standard at those hearings.  And, the missing biological parent must receive notice of the abandonment allegations so they can contest the allegation of abandonment.  In other words, perhaps they have a really good reason for dropping out of the child’s life such as the birth mother disappeared with the child and left no forwarding address, phone number or social media contact. But, absent that, the Court may order the adoption even if the biological parent objects if the Court finds by clear and convincing evidence that the biological parent has abandoned the child.   

Other Common Questions

"Can I just add my husband's name to the birth certificate".  The short answer is no, you can't just simply add a name to the certificate.  Your child has to be legally adopted by your husband.

What happens when the biological father doesn't agree to terminate his rights?  Then the Court has to hold a hearing to determine whether the adoption is in the best interest of the child or not.

Does the child have to consent?  The child has to consent to the adoption if he is 14 years old or older.

We work with many families in Virginia on stepparent adoptions.  It is always a joyful moment when we appear in front of the Court and the family that has been acting as a family for many years finally receives legal recognition of that.  The child will then receive a second birth certificate with the new parent added.  This does not eliminate the first birth certificate or the biological parent’s role in the child’s early life.  The child will always have two birth certificates.  However, legally, the stepparent will have all the rights and obligations of a parent after the stepparent adoption is completed.

Drafted by Karen S. Law, with assistance from Brittany Alness, staff member of the Law Offices of Karen S. Law, PLC.

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This web site and the information contained within have been prepared by Law Offices of Karen S. Law, PLC for informational purposes only and does not constitute legal advice. This information is not intended to create, nor does receipt of it constitute an attorney-client relationship. Viewers should not act upon information found here without seeking legal counsel. All photographs shown on this web-site are depictions of clients and are not actual clients of this law firm. Copyright Karen S. Law, 2017.