Interstate Adoptions

The Adoption and Surrogacy Law Center

The Interstate Parental Placement Adoption When the Baby is Born Outside of Virginia and the Adoptive Parents Reside in Virginia

By Colleen Quinn, Esquire

The Adoption & Surrogacy Law Center

at Locke & Quinn

http://www.virginia-adoption-attorney.com

quinn@lockequinn.com

In handling interstate adoptions where the child is born or to be born in Virginia, the first step is typically to determine which state law is more advantageous to the parties.

A. Virginia Residents Usually Can Do the Entire Adoption Under Virginia Law.

Adoptive parents who are residents of Virginia who locate a potential adoptive placement in another state usually can do the entire adoption under Virginia law. However, they should always look at whether they can adopt under the law of the state where the baby is born or being born and whether it would be more advantageous to do the adoption in the other state. They also should check to determine if there are any laws of the other state that prohibit them from doing a Virginia adoption or require additional steps.

B. The Best Action Plan.

The best action plan is for the prospective adoptive parent(s) to contact a qualified adoption attorney in Virginia and have that attorney also contact a qualified adoption attorney in the other state (attorneys who have been admitted as Fellows with the American Academy of Adoption Attorneys are recommended) who is somewhat close in geographic location to the placing birth parent. These two attorneys ought to then coordinate on the pros and cons (including consent and revocation periods, ease of giving consents and terminating parental rights, costs involved, permissible expenses, and all other factors) of proceeding under the law of each state. Potential adoptive parents should be willing to pay consultation fees to the attorneys to work out the options as this involves a considerable amount of time by the attorneys. Ideally the adoptive parents should be able to choose under which state law they prefer to proceed and not allow an attorney to dictate that for them. Adoptive parent(s) should be wary of attorneys who do not advise them of all possible options and who merely are trying to get or keep legal work for themselves.

C. Proceedings for a Virginia Placement When the Birth Parents are in Another State.

For the interstate adoption to take place as a Virginia adoption when the birth parents are in another state, generally the following procedures and costs are involved:

1. Costs Involved:

(a) Attorney for the Birth Mother (and could be for both the birth father and birth mother if they are married). The attorney for the birth mother (“BM”) usually costs about $2,500 to $3,500. Unusual circumstances may warrant higher fees. This attorney usually handles the hospital process and initiates the interstate approval process.

(b) Licensed Adoption Agency Services. The adoptive parents (“APs”) often also will need to pay an adoption agency or a social worker in the other state to offer birth parent counseling. The cost of this agency service can vary from $100 to $500 depending on the agency or social worker, where BM is located and how much counseling is needed.

(c) The Attorney for the Baby. A court appointed guardian ad litem (“GAL”) in Virginia for the child will be about $250 to $400.

(d) The Attorney for the Adoptive Parents. The attorney’s fees and costs for the adoptive parents for the entire process (from handling the entire adoption from termination of parental rights to filing the petition in circuit court to finalization, including obtaining original and amended birth certificates, runs about $3,500 to $4,500.

2. Procedures Involved:

(a) Addressing the Birth Father’s Rights. There are several ways under Virginia law to terminate the Birth Father’s (“BF”) rights:

· The BF can sign a pre-birth consent or denial of paternity.

· The BF can sign a post-birth out of court consent or denial of paternity.

· The BF can come to court with the birth mom and consent.

· The BF can do nothing and, depending on his status, be given notice of the adoption proceeding or of his right to register with the VA Putative Father registry.

(b) Addressing the Birth Mother’s Rights.

Under Virginia law, the Virginia judge can issue a request to the judge of the foreign court to acknowledge the birth mother’s consent (and where the birth father wants to come to court and consent – the birth father’s consent as well). In such case, the birth mom will waive the law of her home state and sign a Virginia consent to the placement before a judge in her own state (unless she wants to come to Virginia to consent instead), must wait until the child is three days old to sign, and has seven days to revoke after signing the consent (if the child is at least ten days old and the birth mother has separate legal counsel, then the birth mother can waive the seven day revocation). The birth mom is to give her consent with the adoptive parents present. Some foreign court judges also will take the added step of transferring temporary custody to the adoptive parents while recognizing that the continued jurisdiction of the matter will be with the Virginia court. The adoptive parents do not have to go back to the foreign state and can leave as soon as they have interstate approval.

(c) The Home Study Report to Court and Virginia Hearing.

The home study needs to be turned into a report to court by the licensed Virginia adoption agency by adding the additional requisite information (background information regarding the child and the birth parents, fees paid, etc.), and it must be filed with the Virginia court. The Virginia court will appoint a guardian ad litem and typically set a hearing date in Virginia to: address the birth father’s rights (which may include accepting his consent or denial of paternity); accept the birth mother’s consent, the report to court and the report of the guardian ad litem; and transfer custody to the adoptive parents (or continue custody with them if the foreign court already has ordered the initial transfer of custody). Depending on the court and the status of the birth father’s rights, a court may or may not waive the actual hearing.

(d) Finalizing the Adoption.

After the proceedings in the Juvenile Court, the adoption will be finalized in the Circuit Court. After the petition is filed, the Interlocutory Order is entered which orders the home study agency to make the requisite visits and then file its report of visitation. The overall adoption process takes about four to five months given that the home study agency must make three visits – with 90 days elapsing between the first and third visit. The agency then files its report of visitation and the Final Order can be entered. After the Final Order is entered, the new birth certificate must be obtained in the other state where the baby was born. Processing times vary from state to state. When the new birth certificate is issued, the original birth certificate will be placed under seal. If the adoptive parent(s) or birth parent(s) wish to have a copy of the original birth certificate, it must be obtained before the Final Order of Adoption is entered.

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Interstate – Parents in VA


The Interstate Parental Placement Adoption When the Baby is Born Outside of Virginia and the Adoptive Parents Reside in Virginia

By Colleen Quinn, Esquire

The Adoption & Surrogacy Law Center

at Locke & Quinn

http://www.virginia-adoption-attorney.com

quinn@lockequinn.com

In handling interstate adoptions where the child is born or to be born in Virginia, the first step is typically to determine which state law is more advantageous to the parties.

A. Virginia Residents Usually Can Do the Entire Adoption Under Virginia Law.

Adoptive parents who are residents of Virginia who locate a potential adoptive placement in another state usually can do the entire adoption under Virginia law. However, they should always look at whether they can adopt under the law of the state where the baby is born or being born and whether it would be more advantageous to do the adoption in the other state. They also should check to determine if there are any laws of the other state that prohibit them from doing a Virginia adoption or require additional steps.

B. The Best Action Plan.

The best action plan is for the prospective adoptive parent(s) to contact a qualified adoption attorney in Virginia and have that attorney also contact a qualified adoption attorney in the other state (attorneys who have been admitted as Fellows with the American Academy of Adoption Attorneys are recommended) who is somewhat close in geographic location to the placing birth parent. These two attorneys ought to then coordinate on the pros and cons (including consent and revocation periods, ease of giving consents and terminating parental rights, costs involved, permissible expenses, and all other factors) of proceeding under the law of each state. Potential adoptive parents should be willing to pay consultation fees to the attorneys to work out the options as this involves a considerable amount of time by the attorneys. Ideally the adoptive parents should be able to choose under which state law they prefer to proceed and not allow an attorney to dictate that for them. Adoptive parent(s) should be wary of attorneys who do not advise them of all possible options and who merely are trying to get or keep legal work for themselves.

C. Proceedings for a Virginia Placement When the Birth Parents are in Another State.

For the interstate adoption to take place as a Virginia adoption when the birth parents are in another state, generally the following procedures and costs are involved:

1. Costs Involved:

(a) Attorney for the Birth Mother (and could be for both the birth father and birth mother if they are married). The attorney for the birth mother (“BM”) usually costs about $2,500 to $3,500. Unusual circumstances may warrant higher fees. This attorney usually handles the hospital process and initiates the interstate approval process.

(b) Licensed Adoption Agency Services. The adoptive parents (“APs”) often also will need to pay an adoption agency or a social worker in the other state to offer birth parent counseling. The cost of this agency service can vary from $100 to $500 depending on the agency or social worker, where BM is located and how much counseling is needed.

(c) The Attorney for the Baby. A court appointed guardian ad litem (“GAL”) in Virginia for the child will be about $250 to $400.

(d) The Attorney for the Adoptive Parents. The attorney’s fees and costs for the adoptive parents for the entire process (from handling the entire adoption from termination of parental rights to filing the petition in circuit court to finalization, including obtaining original and amended birth certificates, runs about $3,500 to $4,500.

2. Procedures Involved:

(a) Addressing the Birth Father’s Rights. There are several ways under Virginia law to terminate the Birth Father’s (“BF”) rights:

· The BF can sign a pre-birth consent or denial of paternity.

· The BF can sign a post-birth out of court consent or denial of paternity.

· The BF can come to court with the birth mom and consent.

· The BF can do nothing and, depending on his status, be given notice of the adoption proceeding or of his right to register with the VA Putative Father registry.

(b) Addressing the Birth Mother’s Rights.

Under Virginia law, the Virginia judge can issue a request to the judge of the foreign court to acknowledge the birth mother’s consent (and where the birth father wants to come to court and consent – the birth father’s consent as well). In such case, the birth mom will waive the law of her home state and sign a Virginia consent to the placement before a judge in her own state (unless she wants to come to Virginia to consent instead), must wait until the child is three days old to sign, and has seven days to revoke after signing the consent (if the child is at least ten days old and the birth mother has separate legal counsel, then the birth mother can waive the seven day revocation). The birth mom is to give her consent with the adoptive parents present. Some foreign court judges also will take the added step of transferring temporary custody to the adoptive parents while recognizing that the continued jurisdiction of the matter will be with the Virginia court. The adoptive parents do not have to go back to the foreign state and can leave as soon as they have interstate approval.

(c) The Home Study Report to Court and Virginia Hearing.

The home study needs to be turned into a report to court by the licensed Virginia adoption agency by adding the additional requisite information (background information regarding the child and the birth parents, fees paid, etc.), and it must be filed with the Virginia court. The Virginia court will appoint a guardian ad litem and typically set a hearing date in Virginia to: address the birth father’s rights (which may include accepting his consent or denial of paternity); accept the birth mother’s consent, the report to court and the report of the guardian ad litem; and transfer custody to the adoptive parents (or continue custody with them if the foreign court already has ordered the initial transfer of custody). Depending on the court and the status of the birth father’s rights, a court may or may not waive the actual hearing.

(d) Finalizing the Adoption.

After the proceedings in the Juvenile Court, the adoption will be finalized in the Circuit Court. After the petition is filed, the Interlocutory Order is entered which orders the home study agency to make the requisite visits and then file its report of visitation. The overall adoption process takes about four to five months given that the home study agency must make three visits – with 90 days elapsing between the first and third visit. The agency then files its report of visitation and the Final Order can be entered. After the Final Order is entered, the new birth certificate must be obtained in the other state where the baby was born. Processing times vary from state to state. When the new birth certificate is issued, the original birth certificate will be placed under seal. If the adoptive parent(s) or birth parent(s) wish to have a copy of the original birth certificate, it must be obtained before the Final Order of Adoption is entered.

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