Biological Father Consent Not Needed if No Contact With Child for More Than Six Months

In most stepparent adoption cases, the child’s biological father has not remained in contact with the child for many years. The stepfather assumes the role as “dad” in the child’s life. The legal standard for stepparent adoption allows for waiving the consent of the absent parent who has not had contact with their child within the six months leading up to the filing of the petition for stepparent adoption. Recently, however, a trial court failed in properly applying this standard.      

Background Facts

10 year old boy
No contact for six months
Mother and step-father file for stepparent adoption
Trial court wrongly assets biological father consent
Appellate court affirms that biological father’s consent is not needed if the biological father has no contact for more than six months

Trial Court Erred

A trial court erred in denying a stepparent’s adoption petition for the adoption of a 10-year-old-boy who had no contact with his biological father for four years. The court examined, and erred in deciding whether an ongoing relationship between the father and son would be detrimental to the child. This is no longer a factor for the court to consider. The trial court held that a statute waiving the need for consent from an absent parent did not apply, thus denying the adoption petition. However, the Court of Appeals reversed the denial of the adoption petition.

Court of Appeals Affirms

The father had no contact with the child since August of 2013. The appellants asserted that the father’s consent to adoption was not necessary pursuant to Virginia Code § 63.2-1202(h) because of the lack of contact with the child for six months prior to the filing of the petition for stepparent adoption. The trial court held that this code was not applicable to the proceeding, but the Court of Appeals found that it was applicable, meaning if the biological father has no contact for more than six months, his consent is therefore waived.

Smith Strong routinely handles stepparent adoption cases and understands the requirements for stepparent adoption. Smith Strong can help you with a stepparent adoption case in Virginia.