The Centers for Disease Control tells us that, in 2017, 34.6 percent of Virginia’s births were to unmarried mothers. The Old Dominion ranks 39th for births to unmarried mothers1. Sometimes, those single Virginia mothers feel compelled to place their children up for adoption. Some Virginia men choose to step up and take responsibility for the children they sired, by contesting the adoption.
The Law in Virginia
Let’s start with what the law permits and does not permit. A child born to a Virginia mother can be placed for adoption under Code of Virginia § 63.2-1202 by:
- The mother;
- A man who is either the father (as defined by § 20-49.1), adjudicated to be the father (under § 20-49.8), is presumed to be the father, or has registered with the Virginia Birth Father Registry;
- A child-placing agency or local board having child custody with the right to place the child for adoption, either by court commitment or parental agreement;
- An agency outside Virginia licensed to place children for adoption
Additionally, stepparents can adopt children, and children 14 or older must agree to be adopted. The same law that defines who can place a child up for adoption also limits the father in his ability to consent to or contest the adoption:
1. No consent shall be required of a birth father if he denies under oath and in writing the paternity of the child. Such denial of paternity may be withdrawn no more than 10 days after it is executed. Once the child is 10 days old, any executed denial of paternity is final and constitutes a waiver of all rights with respect to the adoption of the child and cannot be withdrawn.
2. No consent shall be required of the birth father of a child when the birth father is convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, and the child was conceived as a result of such violation.
Contesting the Adoption
If you do not want the mother of your child to place your child up for adoption, you have a legal right to contest the adoption, but only if you meet the conditions outlined above. You have to admit to being the child’s father. You have to be willing to accept the responsibilities that come with fatherhood.
If you wish to contest the adoption, you must inform the mother, who must place your dissent in her adoption petition. This way, Virginia courts will be able to contact you under § 63.2-1203. The court must provide you with written notice of your right to “be represented by counsel prior to any hearing or decision on the petition. Upon request, the court shall appoint counsel for any such birth parent if such parent has been determined to be indigent by the court pursuant to § 19.2-159.”
No matter whether you can afford a lawyer of your own (and that is by far the better option) or you need a court-appointed attorney, you can contest the adoption at the hearing or when a decision is to be made on the petition.
Avoiding Legal Limbo
Back in 2012 the Virginia Legislature amended § 63.2-1203 to prevent children from falling into a legal limbo, unwanted by the mother but unable to be adopted due to the father’s unwillingness to consent to the adoption. As happens throughout Virginia law, the “best interests of the child” are paramount:
If, after consideration of the evidence, the circuit court finds that the valid consent of any person or agency whose consent is required is withheld contrary to the best interests of the child as set forth in § 63.2-1205, or is unobtainable, the circuit court may grant the petition without such consent…
This, of course, works against your best interests as the child’s father, but as with all else in Virginia family law, your interests are secondary to your child’s.
Terminating Parental Rights (TPR)
One reason to contest adoption of a child you sired is to preserve your parental rights. Virginia treads very cautiously in stripping its citizens of their rights as parents. The process is slow, deliberate, and full of opportunities for all parties to change their minds. It may take several years for a parent to have his parental rights terminated.
Virginia’s Department of Social Services (DSS) oversees TPR for children in foster care. The steps for TPR are delineated in its Child & Family Services Manual:
- The local Department of Social Services (LDSS) permits parents to voluntarily terminate their parental writes through a Permanent Entrustment Agreement (PEA)
- The LDSS may terminate parental rights involuntarily through the courts; the LDSS must indicate to the court one or more conditions of parental failure:
- Failure to maintain contact
- Failure to make progress
- Abandonment
- Aggravated circumstances (torturing your child, abuse of any kind including sexual abuse)
- Criminal convictions
What’s the Best Strategy
If you wish to contest an adoption process established by the mother of your child, your best strategy is to take an active, assertive role in establishing your fatherhood.
Make plain to the child’s mother that you do not want the child put up for adoption. Use every opportunity to proclaim in writing and before witnesses that you do not intend to consent to the adoption.
Most important, hire an experienced, assertive family law attorney to make your case to DSS and the courts.
Please reach out to The Firm For Men by calling our offices at 757-383-9184 or by contacting us online. We can help with your family law matters. We focus on helping Virginia’s men preserve their rights, safeguard their finances, and protect their children.
[1] https://www.cdc.gov/nchs/pressroom/states/virginia/virginia.htm
