Stepparent Adoption in Virginia

Posted on Nov 9, 2015 by Katie Carter

Most of the time, we deal with sad stuff—divorce, separation, and custody. Of course, from our perspective, most of these things are positive. Even though there’s no question that our clients are going through something profound and traumatic, we like to think that we’re providing them a sense of strength and empowerment, and the opportunity for a second chance. It feels good, doing what we’re doing, and I’m proud to work for a company that allows me to help women in such a way.
Still, there’s no taking away from the fact that, for most of my clients, our meeting is a sad one. Even though they look forward to a better and brighter and happier future, the interim period doesn’t look so good. They’re sad and anxious and grieving, and it falls to me to help them move as seamlessly through the transition as possible. I’m happy to do it; it’s my job and, anyway, I really believe in what we’re doing here.
At no point is what we’re doing more readily apparent (and more wonderful!) than when a former client comes back to us to help with an adoption. We don’t really handle that many adoptions, mostly because they’re really fairly rare, but it’s always a joy when we do.
Mostly, what we see is not traditional adoption like you might have seen in movies or on TV. In the traditional adoption case, the child is either an orphan (and has no parents), or is a child from parents who have given up their parental rights. These children can be freely adopted (although, of course, not without going through some pretty serious yellow tape first) because there are no other parents competing for time with them. In fact, were it not for adoptive parents, these children would find themselves in foster care or at the mercy of social services; there’s no one fighting for visitation or even anyone who is legally on the line for paying child support. Adoption, though not particularly easy in any case, is much easier in these cases.
Usually, the type of adoption we see is stepparent adoption.

What is stepparent adoption?

Let’s use an example first. Last year, Rachel came to our office. It wasn’t the first time she had been in; we handled her divorce from her first husband, David, several years before. Now, though, remarried and happier than ever, Rachel wanted to find out whether her second husband, Michael, could adopt her child from her first marriage. Michael was totally on board and really excited to officially become a dad. David, who hadn’t been heard from in months and only sporadically paid child support, couldn’t be found.
Rachel’s new husband, Michael, is interested in a stepparent adoption. He’s not the biological father of Rachel’s child, but he is willing to take legal responsibility for her. The only problem? Rachel’s child already has two biological parents.
It’s a little trickier in this type of case. Even though David may not be exercising visitation or even paying child support, that doesn’t mean he’ll give his child up without a fight. Most parents don’t.

If my new husband wants to adopt my child, why on earth couldn’t he?

Unless your child’s father is dead, your child already has two parents. As biological parents, you both have rights. Even if he chooses not to exercise his rights as fully as he might be able to, that doesn’t mean that he’ll be willing to give up his rights entirely.
The thing is… Deadbeat or not, your child’s father has rights. And, unfortunately, he doesn’t really have to exercise visitation, or even pay support, for those rights to exist. (Though, if he’s not paying support, you should talk to an attorney to see what you can do to make him pay.) He has the right, should he choose, to participate in major decisions affecting the child. If you have joint legal custody, he’s at least responsible for helping you to make decisions regarding religious upbringing, education, and non emergency medical care. Likewise, he’s responsible for paying child support (and the state doesn’t like to relieve people of their responsibility to pay support).
As long as he’s still legally on the hook, another person can’t adopt your child. That’s just the way the law works. Three people can’t legally be “parents” of a child.

What can I do to make sure my husband can adopt my child?

It really all depends on your child’s father. Will he sign over his rights, in exchange to be off the hook for child support? Some men will. (And, furthermore, are you even prepared for the anger you’ll feel at him if he actually does?) More men won’t, because, even if they’re deadbeats, they still feel for their kid. It may not exactly be love, and it doesn’t necessarily translate into a willingness to become a great dad, but they feel something. And it’s hard for a lot of them to truly sign away all their legal rights, even when faced with the tempting proposition of never having to pay child support again.
There’s not a lot you can do to clear the way. It’s really just a matter of whether your child’s father will or won’t agree. If he doesn’t, of course, you can take the case to court—but there your likelihood of success probably won’t be as high as you’d like it to be, either.

What standard does the court use to judge whether the child can be adopted?

If you don’t get your way by trying to reason with the child’s father, you can take the issue to court. Basically, the court would have to find that it is in the best interests of the child to terminate dad’s parental rights in order for the child to be adoptable.

Best interests of the child

All decisions relating to children are based on the ten all important “best interests of the child” factors, codified in Virginia Code § 20-124.3. The importance of these factors really can’t be overstated; they’re really the be all, end all when it comes to custody cases. In case you haven’t had a run in with these factors yet, go ahead and read them here.
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

Termination of parental rights

As you can probably already tell, even based on a cursory reading of the best interests of the child factors, the court strongly believes in the importance of both parents in the lives of a child. In very, very few cases would the court find that it is in the best interests of the child for dad’s parental rights to be terminated. In fact, even in cases where I’ve seen physical and sexual abuse, parental rights are not always terminated.
That doesn’t mean that dad has to have custody, or even unsupervised visitation. But it does mean that the court views dad’s role as very, very important to the care and upbringing of the child, and it’s difficult (if not impossible) to convince it otherwise, especially when dad is standing there saying that he doesn’t want his rights terminated. Simply put, in this kind of case, dad’s interest is so much stronger than step dad’s, no matter how good his intentions. At the end of the day, biological dad is still biological dad, and he still has rights.
If you’re serious about stepparent adoption, you may want to talk to an attorney to get an idea of whether it’s likely that your child’s biological father’s parental rights might be terminated. In my experience, it doesn’t happen all that often, but it is possible that your extenuating circumstances could change the analysis. Not only that, but if your child’s father is willing to sign over his rights, you will be able to skip all the complicated court related stuff.
If it’s something you want to pursue, you should definitely talk to someone one on one, just to get an idea of what might happen in your particular case. Just because it’s difficult doesn’t mean it’s impossible, and an attorney who is acquainted with the details of your case will be in the best possible position to advise you about what you should be thinking about doing next.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody (and step parent adoption!) lawyers, give our office a call at (757) 425-5200.