Winning a Contested Adoption

When families seek to adopt the desire is to expand or create a new family and is emotionally charged with excite, anxiousness, and joy. Whether a new child is joining the family or the family is formalizing an existing relationship between a child and a step-parent, the goal is to give the child a loving, nurturing, and stable environment where they can thrive. Uncontested adoptions can turn to contested adoption battles when a natural parent refuses to relinquish their rights to another. These battles can be long, expensive, and emotional. Virginia has laws that presume the natural parent’s interests are greater than a third-party’s. This presumption can be overcome if the adoption is in the best interests of the child.

The Law of Contested Adoption

Adoption in Virginia is addressed in the Virginia Code of 1950, as amended §§ 63.2-1200 through 63.2-1253. Typical contested adoptions are step-parent adoptions where the biological parent refuses to relinquish their rights. This scenario is addressed in § 63.2-1241(C). Within that section, the law creates a pathway to step-parent adoption where the “consent to adoption is withheld contrary to the best interests of the child”. If the circuit court where the petition is filed determines that adoption would be in the “best interests of the child”, they may order that adoption. To weigh the interests, the factors of § 63.2-1205 are examined.

Grounds for Adoption Without Consent

• Abandonment: If a birth parent has abandoned the child and failed to maintain contact for a period of six months (§ 63.2-1202(H)), their parental rights may be subject to termination. The adoptive parent(s) are required to establish a high-level of evidence that this failure was without just cause and the abandoning parent has a right to participate in the hearing on the adoption and abandonment allegation.
• Abuse or Neglect: If a birth parent has subjected the child to abuse or neglect, or if they are deemed unfit to parent due to substance abuse or mental illness, their parental rights may be terminated.
• Incarceration or Institutionalization: If a birth parent is incarcerated or institutionalized for a prolonged period and unable to fulfill parental responsibilities, their parental rights may be subject to termination.

Interesting Cases on Contested Adoption

Several landmark cases in Virginia have established important legal precedents in contested adoptions without birth parent consent. For example:

• Copeland v. Todd (282 Va. 183): In this case Todd withheld consent for the step-parent to adopt her five year old. The court weighed the factors in § 63.2-1205 and determined her consent was withheld against the best interest of the child. The court then ordered the adoption. This is a must read as the court held, citing Malpass v. Morgan, that “it is insufficient simply to prove that the best interests of the child would be promoted by the adoption.” To determine the best interests in adoption, “it must be shown that continuance of the relationship between the [birth parent and child] would be detrimental to the child’s welfare.” Long story short, just because the child would be in a better place is not good enough, the required proof is that the child is in a worse place with the biological parent maintaining their parental rights.
• Malpass v. Morgan (213 Va. 393): This case laid the groundwork for Copeland, but here, unlike in Copeland, the court overturned a decision by the underlying circuit court granting an adoption. The facts are starkly different. To understand the general tenor of this court, “[t]he condition is that the rights of parents may not be lightly severed but are to be respected if at all consonant with the best interests of the child.”

Finally…

If you are considering pursuing a contested adoption where the biological parent is not consenting, weigh the facts of your case objectively to determine if you can overcome these burdens. Obtaining an adoption without birth parent consent in Virginia requires careful consideration of legal procedures, grounds for termination of parental rights, and the best interests of the child (or the detriment to the child). Seek guidance from an experienced adoption attorney, to aid in navigating these complex proceedings with diligence and to ensure the protection and promotion of the rights and well-being of the children involved.