Stepparent Adoption in Virginia: Consent and Court Steps

Who can use this route

Article 4 of Chapter 12, Title 63.2 covers a child's stepparent, and also "a person with a legitimate interest" who is not the child's birth parent. Section 20-124.1 says that phrase is broadly construed and includes stepparents and former stepparents, grandparents and other family members, with some exclusions, provided the person has intervened in the suit or is otherwise properly before the court.

Section 63.2-1241(E) adds a separate case: where both petitioners are listed as parents on the child's birth certificate, the court shall permit them to obtain an adoption order under this section to secure the child's legal parentage. A former stepparent has a separate route in § 63.2-1201.1(B): the person must have stood in loco parentis during the marriage, have been able to adopt under § 63.2-1241 then, and have the consent of the prior spouse who is the child's parent. No child may have more than two living parents with legal rights (§ 63.2-1201.1(D)).

When the court can decide without a referral

Under § 63.2-1241(B), the court may order this adoption and any name change without referring it to the local director of social services in any of these situations. It can still order an investigation if it chooses.

When no consent is required

Consent must normally be filed with the petition, in writing, signed under oath and acknowledged before an officer authorized to take acknowledgments (§ 63.2-1202(A)). Section 63.2-1202 then lists exceptions:

• Six months without contact. No consent is required of a birth parent who, without just cause, has neither visited nor contacted the child for six months immediately before the petition was filed (subsection H). The petitioner must show this by clear and convincing evidence, the parent keeps the right to be noticed and heard, and paying child support alone is not contact.
• Missed hearing. A nonconsenting party who fails to appear at a scheduled hearing, in person or by counsel, after proper notice waives any objection and right to consent (subsection J).
• Denial of paternity. No consent is required of a birth father who denies paternity under oath and in writing. A denial can be withdrawn no more than 10 days after it is executed (subsection E).
• Certain offenses. No consent is required of a birth father in the rape-related situations in subsection F, where the child was conceived as a result.
• Terminated rights. No notice or consent is required of a person whose parental rights have been terminated by a court (subsection G).

Under § 63.2-1203(A), a court can also grant the petition without consent that is required if it is withheld contrary to the child's best interests, or is unobtainable.

If the other parent refuses

The court decides whether consent "is withheld contrary to the best interests of the child" (§ 63.2-1241(C)). If it finds that, it may order the adoption without a referral, or send the matter for an investigation, which can look at the factors in § 63.2-1205. Who must consent, and when, is set out in § 63.2-1202.

The court must give a parent said to be withholding consent written notice of the right to counsel and, on request, appoint counsel if that parent is found indigent (§ 63.2-1203(C)). The petition may be granted 15 days after personal service, or 10 days after an order of publication is completed (§ 63.2-1203(A)). Named parties in a pending custody or visitation case are entitled to notice and an opportunity to be heard (§ 63.2-1202(L)). This is the contested version of the process, and a lawyer's advice matters most here.

Steps

1. Confirm the route fits: stepparent, or another person with a legitimate interest.
2. Work out consent: the other parent, and the child if 14 or older.
3. File the joint petition in circuit court where you live or where the child lives. It must say whether you are seeking a name change.
4. The court decides whether an investigation is needed (§ 63.2-1242) and may waive a guardian ad litem for the child (§ 63.2-1241(D)).
5. If the court is satisfied, it enters the final order.

The clerk can confirm local filing requirements and fees. Find the right court in the court locator.

What a final order changes

Section 63.2-1215 divests the birth parents and any previous adoptive parents of all legal rights and obligations toward the child, except a parent married to a petitioner. That includes the right to ask a court for visitation. The section's wider cutoff for relatives makes an exception for orders under § 63.2-1241, so a stepparent adoption can leave those relatives' position different. Read it with a lawyer if grandparents are involved.

For agency, adult and military adoption topics, see the Virginia adoption overview.