Consent to Adoption - Virginia

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Who Must Consent to an Adoption

Citation: Ann. Code §§ 63.2-1202; 63.2-1241

Consent shall be executed by the following:

  • The birth mother
  • Any man who:
    • Is an acknowledged father under § 20-49.1
    • Is an adjudicated father under § 20-49.8
    • Is a presumed father
    • Has registered with the Virginia Birth Father Registry
  • The child-placing agency or the local board having custody of the child, with the right to place the child for adoption, through court commitment or parental agreement
  • An agency outside the Commonwealth that is licensed or otherwise duly authorized to place children for adoption by virtue of the laws under which it operates

In a stepparent adoption, the adoption may be granted when any of the following apply:

  • The noncustodial birth parent or parent by adoption consents, under oath and in writing, to the adoption.
  • The mother swears, under oath and in writing, that the identity of the father is not reasonably ascertainable, rendering his consent unnecessary.
  • The acknowledged, adjudicated, presumed, or putative father named by the mother denies paternity of the child, rendering his consent unnecessary.
  • The child is age 14 or older and has lived in the home of the person desiring to adopt the child for at least 5 years.
  • The noncustodial birth parent is deceased.
  • The noncustodial birth parent executes a denial of paternity under oath and in writing.
  • The child is the result of surrogacy and the noncustodial birth parent consents to the adoption in writing.
  • The noncustodial birth parent:
    • Is not an acknowledged father
    • Is not an adjudicated father
    • Is not a presumed father
    • Is not a putative father who has registered with the Virginia Birth Father Registry, and the putative father's identity is not reasonably ascertainable

Consent of Child Being Adopted

Citation: Ann. Code § 63.2-1202

Consent must be executed by the child if he or she is age 14 or older unless the circuit court finds that the best interests of the child will be served by not requiring such consent.

When Parental Consent is not Needed

Citation: Ann. Code § 63.2-1202

No consent shall be required if any of the following applies:

  • A birth father denies, under oath and in writing, the paternity of the child.
  • The birth father is convicted of rape, statutory rape, incest, or an equivalent offense of another state or any foreign jurisdiction, and the child was conceived as a result of such violation.
  • Any person has had his or her parental rights terminated by a court of competent jurisdiction.
  • A birth parent, without just cause, has neither visited nor contacted the child for a period of 6 months prior to the filing of the petition for adoption.

The failure of the nonconsenting party to appear at the scheduled hearing, either in person or by counsel, after proper notice has been given, shall constitute a waiver of any objection and right to consent to the adoption.

When Consent Can Be Executed

Citation: Ann. Code §§ 63.2-1202; 63.2-1233

A birth father may consent to the termination of all of his parental rights prior to the birth of the child.

In a direct parental placement, the adoptive child must be at least in the third calendar day of life before the birth parents can execute consent before the juvenile and domestic relations court.

How Consent Must Be Executed

Citation: Ann. Code §§ 63.2-1202; 63.2-1233

No petition for adoption shall be granted unless written consent to the proposed adoption is filed with the petition. Such consent shall be in writing, signed under oath, and acknowledged before an officer authorized by law to take acknowledgments. A birth parent who is under age 18 shall have legal capacity to give consent to adoption and perform all acts related to adoption and shall be as fully bound thereby as if the birth parent had attained age 18.

In a direct parental placement, the birth parent or both birth parents, as the case may be, shall execute consent to the proposed adoption when they come before the juvenile and domestic relations district court in person and in the presence of the prospective adoptive parents. The juvenile and domestic relations district court shall accept the consent of the birth parent(s) and transfer custody of the child to the prospective adoptive parents, pending notification to any nonconsenting birth parent.

The execution of consent before the juvenile and domestic relations district court shall not be required of a birth father who is not married to the mother of the child at the time of the child's conception or birth if the birth father consents under oath and in writing to the adoption.

Revocation of Consent

Citation: Ann. Code §§ 63.2-1204; 63.2-1223; 63.2-1234

Parental consent to an adoption shall be revocable prior to the final order of adoption under these conditions:

  • Upon proof of fraud or duress
  • After placement of the child in an adoptive home, upon written, mutual consent of the birth parents and prospective adoptive parents or child-placing agency

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until the child has reached the age of 10 days and 7 days have elapsed from the date of execution of the agreement. In addition, a valid entrustment agreement shall be revocable by either of the birth parents if the child has not been placed in the physical custody of adoptive parents at the time of such revocation. Revocation of an entrustment agreement shall be in writing and signed by the revoking party. The written revocation shall be delivered to the child-placing agency or local board to which the child was originally entrusted.

In a direct parental placement, consent shall be revocable by either consenting birth parent for any reason for up to 7 days from its execution. The 7-day revocation period may be waived in writing at the time of consent provided that the child is at least 10 days old and the consenting birth parent acknowledges having received independent legal counsel regarding the effect of such waiver. In the case of two consenting birth parents, the waiver by one consenting birth parent shall not affect the right of the second consenting birth parent to retain his or her 7-day revocation period.

Such revocation shall be in writing, signed by the revoking party or counsel of record for the revoking party, and filed with the clerk of the juvenile and domestic relations district court in which the petition was filed.