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Adoption

General Information

Adoption is a legal proceeding in which a parent's parental rights and responsibilities are terminated and a child becomes the legally recognized child of a different person or couple. It also terminates any legal rights of persons such as grandparents or other relatives whose rights are through the natural parent(s). Generally, an adoption is irreversible after a court issues a final order of adoption. Adoption permanently terminates the natural parent's obligations to pay child support. If the adoptive parent(s) divorce, an adoptive parent may be required to pay child support as if he or she were the child's natural parent.

The following provides general information on adoption proceedings, but each state's laws and each individual case may be different. The law of the state in which the adoption proceeding takes place governs adoption. In Virginia, the laws for adoption are found at § 63.1-220 et seq. of the Code of Virginia, and the information below is based on Virginia law. If you are interested in adopting a child from outside Virginia, you should consult a legal assistance attorney or private attorney licensed to practice in the state where the adoption proceedings will take place. Also, adoptions involving children from outside the United States often raise a number of complicated questions involving both foreign and U.S. law. If you are interested in adopting a child from a foreign country, you should consult an agency or attorney with special experience in that area.

This information will discuss three types of adoption: adoption by a new spouse of one of the natural parents (a step-parent adoption), adoption through a child placement agency, and adoption of a child placed by one of the natural parents (a "direct" adoption). All three types involve the filing of a petition for adoption in a Virginia court. Although the discussion below refers to a "natural" or "birth" parent, it includes a parent who legally adopted a child in a prior proceeding. A person over the age of 18 may also be adopted, but that will not be discussed here because it is so unusual.

Step-Parent Adoption

The spouse of one of the natural parents may adopt the child of the other spouse if he or she is divorced from the other natural parent, the other natural parent is deceased, or the identity of the natural father is unknown (see Va. Code § 63.2-1241). The court is not required to order a "home study" by a child services agency before approving the adoption by a step-parent. The court may consider the child's wishes in deciding whether to approve an adoption, and will not approve an adoption of a child over the age of fourteen if the child does not consent. If the adoption is approved, the court may issue a final adoption order without first issuing an interlocutory, or temporary, order with a probationary period, and may also approve changing the child's name. Here are some examples:

1. Natural Parent is Deceased. Mike and Laura are the natural parents of Greg, Peter, and Bobby. Laura dies, and Mike remarries Carol. They want Carol to adopt Greg, Peter and Bobby. Both Mike and Carol must file a petition for adoption. The court may approve the adoption and issue a final adoption order.



2. Natural Parents are Divorced. Carol and Rob are the natural parents of Marcia, Jan, and Cindy. Carol and Rob divorce, and Carol marries Mike. They want Mike to adopt Marcia, Jan and Cindy. Both Mike and Carol must file a petition for adoption. If Rob consents in writing to the adoptions, the court may approve the adoption and issue a final adoption order. (Rob may be willing to give his consent since the adoption by Mike will permanently terminate Rob's obligations to pay child support. If Mike and Carol later divorce, Mike would be required to pay child support for Marcia, Jan and Cindy as if he were their natural father.) However, if Rob does not consent in writing, the court will order an adoption only if it determines that it would be detrimental to Marcia, Jan and Cindy for Rob to retain any parental rights. The court will look at Rob's relationship with the children, including whether or not he has paid required child support or exercised any visitation rights. Mike and Carol must also show that they provided legal notice to Rob of the adoption proceeding. There are specific procedures for providing legal notice if Rob's whereabouts are unknown. These include mailing to Rob's last known address and publishing a legal notice in a newspaper of general circulation in the area of Rob's last known address.



3. Natural Parents were not Married. Carol marries Mike. She has three daughters. Carol was not married when the girls were conceived or born. Mike and Carol file a petition for Mike to adopt the three girls. The court may approve the adoption and issue a final order of adoption if:



• the girls' natural father(s) consents in writing under oath to the adoptions;
• Carol swears under oath in writing that the identity of the father(s) cannot be reasonably determined;
• the person(s) Carol named as the father denies paternity;
• the natural father(s) is deceased; or
• the child to be adopted is over the age of fourteen and has lived in a home with Mike for at least five years.

Again, the adoption terminates any obligation for the natural father(s) to pay child support, but also terminates any custody or visitation rights.

Agency Placement

Under Va. Code § 63.2-1221, a licensed child placement or social services agency may consent to an adoption of a child that has been entrusted to that agency.

Entrustment Agreement: An entrustment agreement is an agreement in which the birth parents give up their parental rights and allow the agency to consent to an adoption. The entrustment agreement is valid even if a birth parent is under the age of 18. The natural father's signature is not required on the entrustment agreement if the birth mother signs an affidavit that says the identity of the father cannot be reasonably determined, or if the father is given notice of the entrustment agreement by registered or certified mail and does not object within 21 days. Either of the natural parents may revoke the entrustment agreement within 15 days after it is signed, until the child reaches the age of 21 days, or anytime before the child is placed in the home of adoptive parents.

Home Study: After the prospective adoptive parent or parents file a petition for adoption, the court will order the placing agency to submit a home study report within 90 days. The report must specifically address whether the prospective adoptive parents are financially able to support the child, their moral suitability, their mental and physical health, the child's mental and physical health, why the natural parents are willing to give up their parental rights, how the child was placed in the adoptive parents' home, and any fees paid to the agency by the adoptive parents.

Interlocutory Order: After the court reviews the adoption petition and the home study report, and determines that the adoption is in the child's best interests, it may enter an interlocutory, or temporary, order of adoption. The court may revoke the interlocutory order "for good cause" at any time before it issues a final order. A social services agency must visit the child at least three times during a six-month period while the interlocutory order is in effect, and submit a written report to the court.

Final Order: At least six months after it issued the interlocutory order, and after receiving the visitation report, the court may issue a final adoption order. The final order may not be appealed or overturned for any reason after six months from the date it was issued.

Direct Placement

Under Va. Code § 63.2-1230, a birth parent or legal guardian may place a child directly with specific adoptive parents. In such cases, the court will normally schedule a hearing within 10 days after the petition for adoption is filed. The court will accept consent for the adoption from the birth parents only if the child is at least 10 days old and the court determines that:

• the birth parents freely consent to the adoption and are aware of alternatives to adoption;
• a licensed child placement agency has counseled the prospective adoptive parents;
• the birth parents and adoptive parents have exchanged names, addresses, and other information necessary for the child's welfare;
• any financial arrangements are disclosed to the court;
• no illegal payments were made or promised (payments related to medical costs for the mother and child, reasonable costs for food and shelter if the birth mother is unable to work during the pregnancy, and legal fees and other costs related to the adoption proceeding itself may legally be paid);
• a home study has been completed (see discussion above); and
• the birth parents are informed that they have the right to be represented by an attorney.

The child's birth mother must appear in court to give consent. The birth father does not have to appear in court if he was not married to the birth mother at the time the child was conceived or born and he:

• consents to the adoption in writing and under oath;
• the birth mother swears under oath that the father's identity cannot be reasonably determined;
• the named father denies paternity; or
• the birth father is given notice by registered or certified mail and does not object to the adoption within 21 days.



Confidentiality of Adoption Records

After a final adoption order is issued, the court transfers the adoption records to the Commissioner of Social Services. Most adoption records are sealed, and are not open to the public. An adopted child over the age of 18 may be given access to some records that do not contain identifying information. A court order is usually required for access to records containing identifying information. Before ordering release of the records, the court will try to notify the biological parents of the request for records and give them an opportunity to submit comments on the effect of disclosure. There are also special provisions for the release of medical, psychological or genetic information upon request of a physician or mental health provider.

Legal Assistance

Coast Guard policy allows Legal Assistance attorneys to prepare paperwork for eligible clients to file for uncontested step- parent adoptions. A Coast Guard Legal Assistance attorney can also provide general information in connection with other adoptions. In very limited circumstances, a Coast Guard Legal Assistance attorney may actually represent eligible clients in court for adoption proceedings. You should contact your local legal assistance office to find out what services may be available.

Reimbursement of Adoption Expenses

COMDTINST 1754.9A and 14 U.S.C. 514 allow the Coast Guard to reimburse Coast Guard members for some expenses connected with the adoption of a child under 18 years of age. Reimbursable expenses include reasonable and necessary expenses directly related to the legal adoption of a child, but only if an authorized government or non-profit placement agency arranges the adoption. Expenses for travel by an adopting parent are not reimbursable. A Coast Guard member, or two members who are spouses, may be reimbursed up to $2,000.00 per child, with a maximum total reimbursement of $5,000.00 in any calendar year. All reimbursements are taxable on the same basis as base pay.

Temporary Separation for the Care of Newborn Children

Chapter 12.F of the Coast Guard Personnel Manual (COMDTINST M1000.6A) allows officers and enlisted members to take a one-time unpaid separation from active duty for up to two years to discharge parental responsibilities to care for newborn children. A child under the age of 12 months is considered a newborn child. The policy applies to either parent and includes legally adopted newborn children. A request for separation may be submitted when a member is on an approved list with an adoption agency. During the separation, a member does not receive pay or allowances, does not accrue time toward retirement, is not entitled to medical benefits, and loses commissary and exchange privileges.

Taxes

Under current Federal tax laws, an adoptive parent may receive a tax credit of up to $5,000.00 for qualifying expenses paid to adopt an eligible child. The credit may increase to $6,000 for expenses for adoption of a child with special needs. Qualifying expenses include reasonable and necessary adoption fees, court costs, attorney fees, travel expenses (including amounts spent for meals and lodging while away from home), and other expenses directly related to the legal adoption of an eligible child. Expenses for adoption of a spouse's child do not qualify for the tax credit. This credit will be eliminated after 2001 except for adoption of a child with special needs. IRS Pub 968 provides additional information on tax benefits for adoption. For tax exemption and deduction purposes, an adopted child is a dependent the same as a natural child.