Standard of Proof in Virginia for Adoption Cases When Birth Parent’s Consent is Not Given

Permitting an adoption without the consent of one of the child’s birth parents requires special attention to procedure by the Virginia Circuit Court. However, judges are allowed to do this pursuant to Virginia Code § 63.2-1205. The attorneys at Smith Strong, PLC understand the strict, high threshold requirements and standards of proof required in representing client’s seeking adoption of a child without one of the birth parent’s consent.

The child’s psychological development and the child’s best interests are central to these standards of proof. Qualified child psychologists, along with the attorneys at Smith Strong, PLC, can help in providing a knowledge and understanding of the child’s best interests, in court.

Eight Factors Court Looks At

An adoption without the consent of one of the child’s birth parent’s involves eight factors the court must look to.

The Birth Parent’s Efforts to Obtain or Maintain Legal and Physical Custody of the Child

This factor concerns the birth parents’ efforts. The attorneys at Smith Strong, PLC have experience in advising and consulting clients in what efforts to take if seeking to prevent adoption of a child, as well as what to do if seeking to adopt a child without the birth parents’ consent.

Whether the Birth Parents Are Currently Willing and Able to Assume Full Custody of the Child

This is based on the birth parents’ willingness to care for the child on the trial date. This does not include hopes and plans for the future, and only the willingness and ability of the birth parent at the date of the trial.

Whether the Birth Parents’ Efforts to Assert Parental Rights Were Thwarted by Other People

This standard requires that an effort on the birth parents’ behalf should be made, and that someone actually presented that effort from going forward.

The Birth Parents’ Ability to Care for the Child

The ability to care for the child also include the ability to recognize and understand the child’s particular needs.

The Child’s Age

The court looks at the child’s age, as well as their attachment and bonding with the parent at their age.

The Quality of any Previous Relationship Between the Birth Parents and the Child, and Between the Birth Parents and Any Other Minor Children

If a relationship previously existed between birth parents and the child, the court must examine this based on its quality. If a previous relationship was harmful to the child and unsuccessful, it is less likely that the court will find iin favor of the birth parents.

The Duration and Suitability of the Child’s Present Custodial Environment

This requires the court to examine the relationship between the child and their custodial guardian. The court will look at how long the child has been in their care and the environment in which the child is currently living in.

 
The Effect of a Change of Physical Custody on the Child

This factor examines the psychological impact on the child of being removed from the home in which they currently reside.

Van Smith and his colleagues at Smith Strong, PLC have experience in carefully preparing and presenting evidence to address each of these standards as set forth in the Virginia Code.

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg