The first of the eight standards of proof which a court is required to consider prior to determining whether the consents of birth parents to a proposed adoption are being withheld contrary to the best interests of the child is stated as follows: "The birth parent's efforts to obtain or maintain legal and physical custody of the child."
The Standards of Proof which a Court must consider in granting an Adoption without the Consent of a birth parent includes standard "catch all" language.
When Section 63.2-1205 was enacted in 1995, it included language requiring the trial court to consider whether failure to grant the Petition for Adoption would be detrimental to the child. In 2006, the General Assembly removed this language from the statute, and substituted for it the requirement that the court determine whether consent is withheld contrary to the best interests of the child.
In the important 2011 case of Copeland v. Todd, the Supreme Court of Virginia upheld the constitutionality of Section 63.2-1205 of the Code of Virginia, which sets out the standards which a court must consider in making the determination that the consents of birth parents to a proposed adoption are being withheld contrary to the best interests of the child.
In Copeland v. Todd, the Supreme Court of Virginia pointed out that the standards of proof in contested adoption cases must be read along with eight other factors which the Department of Social Services, or private agency, must investigate and report upon pursuant to Code Section 63.2-1208. Those factors are the following:
The Constitutional Rights of Birth Parents are extremely important. Parental Rights are recognized as fundamental rights under the Due Process Clause of the 14th Amendment to the United State Constitution. Whenever a Court must consider whether the best interests of a child require an adoption which is objected to by a birth parent, this would appear to conflict with those important constitutional rights. For this reason, the standards of proof which a court must consider before it can grant an adoption over the objection of a birth parent are very important.
Some people ask why adoption is necessary. Why, they ask, cannot there be some continuing visitation with birthparents? The answer is that there can be in some situations and not in others, and that the decision should be made by the adoptive parents, who are the only ones sufficiently attuned to the individual needs of the child to be able to make that decision in a manner which is responsive to the particular needs of the particular child. Judges usually cannot adequately make that determination.
If the child has not developed a healthy attachment during the critical first five years of life, then it has been conclusively shown that the child will suffer from irreversible developmental consequences, such as reduced intelligence and increased aggression. The condition known as "Reactive Attachment Disorder" will most likely result. This condition comes in two forms, one which causes indiscriminate and dangerous relationshiops and one which prevents any relationships at all.
Attachment is characterized by specific behaviors in children, such as seeking proximity to the attachment figure for comfort, safety and security and to have basic needs met. These behaviors may be clinically observed and measured.
The terms "attachment" and "bonding" are often confused. Attachment refers to a child's emotional connection to caregivers. Bonding refers to the caregivers' feelings and connection to the child. Both are relevant under 63.2-1205, but attachment is of primary concern as it relates more directly to the best interests of the child. It addresses crucial relationships from the point of view of the child's needs and experiences.