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1998 SESSION

984324446
HOUSE BILL NO. 910
Offered January 26, 1998
A BILL to amend and reenact § 63.1-225 of the Code of Virginia, relating to parental consent to adoption.
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Patron-- Sherwood
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That § 63.1-225 of the Code of Virginia is amended and reenacted as follows:

§ 63.1-225. Parental, etc., consent.

A. No petition for adoption shall be granted, except as hereinafter provided in this section, unless written consent to the proposed adoption is filed with the petition. Such consent shall be signed and acknowledged before an officer authorized by law to take acknowledgments. The consent of a birth parent for the adoption of his child placed directly by the birth parent shall be executed as provided in § 63.1-220.3, and the court may accept a certified copy of an order entered pursuant to § 63.1-220.3 in satisfaction of all requirements of this section, provided the order clearly evidences compliance with the applicable notice and consent requirements of § 63.1-220.3.

B. No consent shall be required of the birth father of a child when the birth father is convicted of a violation of subsection A of § 18.2-61 or ; §§ 18.2-63, 18.2-64.1, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4, or 18.2-67.5; subsection B of § 18.2-366, and the child was conceived as a result of such violation; §§ 18.2-370 or 18.2-370.1; clause (ii) of § 18.2-371; or subsection A or B of § 18.2-371.1.

C. A birth parent who has not reached the age of eighteen shall have legal capacity to give consent to adoption and shall be as fully bound thereby as if the birth parent had attained the age of eighteen years.

D. Consent shall be executed:

1. By the parents or surviving parent of a child born in wedlock. A child born to a married birth mother shall be presumed to be the child of her husband and his consent shall be required. This presumption may be rebutted by sufficient evidence, satisfactory to the court, which would establish by a preponderance of the evidence the paternity of another man, or the impossibility or improbability of cohabitation of the birth mother and her husband for a period of at least 300 days preceding the birth of the child, in such case his consent shall not be required. If the parents are divorced and the residual parental rights and responsibilities as defined in § 16.1-228 of one parent have been terminated by terms of the divorce, or other order of a court having jurisdiction, the petition may be granted without the consent of such parent; or

2. By the parents or surviving parent of a child born to parents who were not married to each other at the time of the child's conception or birth. The consent of the birth father of a child born to parents who were not married to each other at the time of the child's conception or birth shall not be required (i) if the identity of the birth father is not reasonably ascertainable or (ii) if the identity of such birth father is ascertainable and his whereabouts are known, such birth father is given notice of the adoption proceeding by registered or certified mail to his last known address and such birth father fails to object to the adoption proceeding within twenty-one days of the mailing of such notice; or

3. By the child-placing agency or the local board of public welfare or social services having custody of the child, with right to place him for adoption, through court commitment or parental agreement as provided in §§ 63.1-56, 63.1-204 or § 63.1-220.2; or an agency outside the Commonwealth which is licensed or otherwise duly authorized to place children for adoption by virtue of the laws under which it operates; and

4. By the child if he is fourteen years of age or older, unless the court finds that the best interests of the child will be served by not requiring such consent.

E. When a child has been placed by the birth parent(s) with the prospective adoptive parent(s) who is the child's grandparent, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt, the court may accept the written and signed consent of the birth parent which has been acknowledged by an officer authorized by law to take such acknowledgments.

F. If after consideration of the evidence, the court finds that the valid consent of any person or agency whose consent is hereinabove required is withheld contrary to the best interests of the child as set forth in § 63.1-225.1, or is unobtainable, the court may grant the petition without such consent:

1. Twenty-one days after personal service of notice of petition on the party or parties whose consent is required by this section; or

2. If personal service is unobtainable, ten days after the completion of the execution of an order of publication against the party or parties whose consent is required by this section concerning the petition; or

3. If the judge certifies on the record that the identity of any person whose consent is hereinabove required is not reasonably ascertainable.

For the purposes of this section, an affidavit of the birth mother that the identity of the birth father is not reasonably ascertainable shall be sufficient evidence of this fact, provided there is no other evidence before the court which would refute such an affidavit. The absence of such an affidavit shall not be deemed evidence that the identity of the birth father is reasonably ascertainable. For purposes of determining whether the identity of the birth father is reasonably ascertainable, the standard of what is reasonable under the circumstances shall control, taking into account the relative interests of the child, the birth mother and the birth father.

G. If the child is not in the custody of a child-placing agency and both parents are deceased, the court, after hearing evidence to that effect, may grant the petition without the filing of any consent.

H. Parental consent to an adoption executed pursuant to this section shall be revocable prior to the final order of adoption (i) upon proof of fraud or duress, or (ii) after placement of the child in an adoptive home, upon written, mutual consent of the birth parents and prospective adoptive parents.

§ 63.1-225.1. Best interests of the child; standards for determining.

In determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, or is unobtainable, the court shall consider whether the failure to grant the petition for adoption would be detrimental to the child. In determining whether the failure to grant the petition would be detrimental to the child, the court shall consider all relevant factors, including the birth parent(s)' efforts to obtain or maintain legal and physical custody of the child, whether the birth parent(s)' efforts to assert parental rights were thwarted by other people, the birth parent(s)' ability to care for the child, the age of the child, the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children, the duration and suitability of the child's present custodial environment and the effect of a change of physical custody on the child.