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Virginia Adoption Law Blog

Standards of Proof in Contested Adoptions

While Circuit Courts in Virginia have long had the authority to grant an adoption without the Consents of the Birth Parents of the child, in 1995 the General Assembly adopted Section 63.2-1205 of the Code of Virginia, which establishes standards of proof which the Court is directed to consider in making this extremely important decision.  Because granting an adoption over the objection of parents means terminating their parental rights, many judges have commented that this is one of the hardest decisions which they are ever called upon to make.  It is therefore essential that the standards of proof be properly understood, not just with respect to their meaning, but also with respect to their purpose.

The Requirements of the Home Study

The agency you select to prepare the Home Study will be primarily concerned about complying with requirements from both the Code of Virginia and regulations issued by the state Department of Social Services.

Choosing the Agency

There are many excellent child placing agencies in Virginia which you may contract with to prepare the Home Study.  It will make a difference, however, which one you choose.

The Home Study

The law requires that a Home Study investigation of the prospective adoptive home be made by a licensed child placing agency.  This report will be filed with the ocurt and reviewed by the attorneys and the judge.  The birth parents have a right to read the report, but they rarely do.

Attorneys in Interstate Adoptions

If a child is being placed across state lines, then another attorney will be necessary.  All fifty states and the District of Columbia have adopted the Interstate Compact on the Placement of Children.  Among the requirements of that law is a provision which makes it a crime to place a child across state lines for the purpose of adoption unless both states have given their prior approval.  This approval is obtained by filing substantial documentation with the Interstate Compact offices in both states.  In order to accomplish this, the adoptive parents will usually need competent adoption counsel in both states.

The Guardian Ad Litem

The law requires that an attorney be appointed by the court to serve as guardian ad litem for the child.  This attorney's job is to investigate and report to the court whether the adoption is in the best interests of the child.  This requires the guardain to interview the adoptive parents and the birth parents and to read the Home Study Report.

Counsel for the Birth Parents

Virginia does not require that an attorney be retained to represent the birth parents.  It is not unusual for a parental placement adoption to proceed without one.  It is recommended, however, that the adoptive parents retain an attorney to represent the birth parents.  Independent legal counsel is the best method we have to ensure that persons enter into commitments in an informed and fair manner.  Also, the very presence of an attorney for the birth parents adds security to the adoption itself.

Counsel for the Adoptive Parents - Part II

The attorney for the adoptive parents will assist the parties in obtaining prenatal care, if that has not already been done.  He will contact the hospital staff to make sure that everyone understands that this will be an adoptive placement and that the hospital's policies are complied with.

Counsel for the Adoptive Parents - Part I

The attorney with the greatest responsibility is the attorney retained by the adoptive parents.  He or she will be the person who moves the case forward from start to finish.  This role is not merely a legal role, because much of what the attorney does is management of the entire process.  Often, he will assist couples from the very beginning of their search process.  He will asst them in preparing their profile, in distributing those profiles, in posting an internet profile, and in deciding which type of adoption to pursue.

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