Questions & Answers

Who is eligible to adopt a child in Virginia?
Any person who resides in Virginia or any person who has custody of a child placed by a Virginia child-placing agency may adopt through the Virginia courts.

Can a single (i.e., unmarried) person adopt in Virginia?
An unmarried person is allowed to adopt a child under Virginia law.

Can two persons not married to each other adopt the same baby?
No. Unless two persons are married to each other, they are prohibited under Virginia law from jointly adopting the same child.

Can a same-sex couple adopt?
In Virginia it is unlawful for a same-sex couple to adopt a child jointly because they are not married. Under the Virginia Constitution, marriage is defined as being between one man and one woman. However, it is not uncommon for one partner in a same-sex couple to proceed with a single parent adoption.

Who may place a child for adoption?
Those who are legally permitted to place children for adoption in Virginia include (i) the child’s biological parent or parents, and (ii) licensed child-placing agencies. In other words, prospective adoptive couples are not limited to agency adoptions. A significant number of adoptions in Virginia are direct parental placement adoptions, where a birth mother places her child directly with the adoptive parents she has chosen.

How does a prospective adoptive couple find a baby to adopt?
Since a birth mother may place a child for adoption directly with the adoptive parents of her choosing, prospective adoptive parents need to think strategically about how they might come to the attention of such a birth mother. Prospective adoptive parents use all sorts of channels to spread the word of their interest in adopting: (i) the internet, (ii) word of mouth, and (iii) networking with family, friends, medical providers, adoption attorneys, pastors, and others who might be “gatekeepers” for birthmothers in crisis. Luck is sometimes the residue of design. We have known successful adoptive parents who found a birth mother by placing flyers on bulletin boards in supermarkets, shoppings malls, laundromats, and college campuses.

Are there restrictions on what prospective adoptive parents may pay to a birth parent?
The laws vary from state to state. States are concerned that a wealthy couple might take advantage of a vulnerable birth mother as well as birth mothers who might “game” the system and place a baby to the highest bidder. Virginia is one of the more restrictive states in what they allow adoptive parents to pay. Virginia law in this area is found primarily in Va. Code § 63.2-1218.

Virginia law authorizes adoptive parents to cover the following costs: (i) medical expenses or insurance premiums for the birth mother that are directly related to the adoption; (ii) mental health counseling expenses for birth parents; (iii) reasonable and necessary expenses for food, clothing, and shelter if the birth mother is unable to work due to the pregnancy; (iv) any legal fees incurred by the adopting parents or the birth parents related to the adoption proceedings; (v) agency expenses including the preparation of a home study for court purposes; and (vi) any travel expenses incurred that relate to the adoption process.

If an expense is not otherwise authorized, it is illegal – a Class 6 Felony – for adoptive parents to give money, property, service, or any other thing of value, or advertise such, in relation to adopting a child.

Are adoptive parents responsible for the medical and legal costs of the birth parents?
Adoptive parents are not required to pay legal or medical expenses of the birth mother, but it is usually the case that adoptive parents do so. It is not illegal for a birth mother to choose one set of adoptive parents over another based on their willingness to cover permissible expenses incurred by the birth mother.

Does the law allow the birth mother to revoke her consent to an adoption?
In a direct placement adoption, a birth mother gives her consent in court, in the presence of the adoptive parents and the presiding judge. If the hearing occurs before the child is 10 days old, the birth mother may unilaterally revoke her consent until the 10th day. A consent given after the 10th day cannot be revoked unilaterally. The only other times Virginia law allows a birth mother to revoke her consent is upon a court finding of fraud or unacceptable duress in the adoption process or upon written, mutual consent of the birth parents and the adoptive parents.

In our experience, the likelihood of a birth mother revoking her consent is very low. We counsel our clients that the best adoptions are between friends, meaning, that when a birth mother and an adoptive couple commit themselves to one another, there is almost no chance the birth mother will come to change her mind.

How are the rights of a birth father addressed in an adoption?
In some adoptions, the birth mother and the birth father work together to ensure a successful adoption. However, there are many instances in which the birth father is not a part of the proceedings at all. In those situations, the rights of the birth father must be addressed.

A birth father may give written consent to an adoption, even prior to birth. He may appear in court with the birth mother and give his consent. He may deny paternity in writing. He may be given notice of the adoption proceeding and commanded in court to assert his parental rights, and if he fails to do so, his parental rights can be terminated.

What happens if the birth father is unknown or unable to be located?
If the birth father is unknown, the adoption may proceed as long as the birth mother willingly testifies that his identity is not reasonably ascertainable. If the father’s identity is known but he is unable to be located, the attorney for the adoptive parents should take action to locate him through several different channels, including the Putative Father Registry.

What is the Putative Father Registry?
The Putative Father Registry is a confidential database that allows a man who believes he may be the father of a child to register as such. The Registry will then notify the father if his child is placed for adoption or if his parental rights are being terminated. If a father fails to register and he has not been acknowledged, presumed, or adjudicated to be the father of a child, he has in effect waived his right to receive notice of the termination of his parental rights and his consent will not be required during the adoption proceedings. Although this registry places responsibility on the birth father, it is still up to the adoptive parents to obtain consent or a denial of paternity in writing from the birth father if at all possible.

Must the adoptive parents and birth mother provide identifying information to each other?
It depends. In an agency placement, the agency acts as the intermediary and there is no need for interaction between the birth parents and the adoptive parents. If they both consent, however, once the child and adoptive parents have been matched, the adoptive parents and birth parents may choose to meet and continue communication (although again this is not required).

In a direct placement adoption, the birth mother and the adoptive parents must exchange identifying information, including full names, addresses, and physical, mental, social and psychological information that might be helpful to the child. In a direct placement adoption, we believe those adoptions work best where the birth mother and the adoptive parents invest in each other’s lives prior to birth and maintain contact for some period of time after birth.

Are the birth parents and adoptive parents required to maintain contact?
There are no requirements upon adoptive parents to maintain contact with the birth parents. In many direct placement adoptions, birth mothers will request pictures and updates on the child, but this is only with the consent of the adoptive parents.

Do birth parents and adoptive parents need legal representation?
Is the Pope Catholic? Yes, at some point during the adoption process, the adoptive parents will need the expertise of an adoption attorney in drafting the requisite documents and representing them in the various court proceedings. Depending on the type of adoption, the need for legal representation may vary. For example, in a stepparent adoption, there is no requirement for a consent hearing in the juvenile and domestic relations court and the Circuit Court procedures may consist only of paperwork, but an adoption attorney will be needed to help draft the proper documents. In comparison, for an interstate or international adoption, an experienced and knowledgeable adoption attorney is critical to properly navigate the legal steps to complete your adoption.

What are typical costs in a direct placement adoption?
The cost of adoption depends heavily on the type of child-placement. In a direct parental placement adoption, it is common for the adoptive parents to cover a wide range of fees including (i) birth mother’s living expenses and medical care (if she is not insured), (ii) home study, (iii) the attorney fees of their own attorney, (iv) the attorney fees of the birth mother’s attorney, and (v) a guardian ad litem who is appointed by the court. These expenses, in addition to a few others, can range anywhere between $10,000 and $25,000 in a private placement adoption.

What are typical costs in an agency adoption?
In an agency placement, adoption fees paid to the agency generally amount to between $20,000 and $25,000.

What are typical costs in an international adoption?
The costs of an international adoption are often higher than for other types of adoption as the adoptive parents will have to pay for travel expenses, legal fees in both Virginia and the foreign country, and usually fairly substantial agency fees for preparation of necessary paperwork. The costs generally range from $25,000 to $35,000.

What is the Adoption Tax Credit?
The Adoption Tax Credit is not a deduction on your taxes, but rather a credited amount that acts as payment toward your tax liability. In addition to the tax credit, the law qualifies that a portion of the expenses paid by your employer for a qualifying adoption may be excludable from your gross income. The law states that qualifying expenses, for either the credit or exclusion, may include adoption fees, court costs, attorney fees, traveling expenses and any other expenses that are incurred for the primary purpose of adopting an eligible child.

The Adoption Tax Credit depends on the adjusted gross income of the adoptive couple. The credit and the exemption together amount to $12,650 per child for couples with incomes less than $182,180. For couples with incomes between $182,180 and $222,180 the credit and exemption are gradually reduced while they are totally unavailable for couples with incomes greater than $222,180.

Can a Virginia couple adopt a baby born in another state?
Yes, interstate adoptions are common occurrences and they can involve either agency or parental placements. However, interstate adoptions are often more complicated and expensive as they must comply with the Interstate Compact on the Placement of Children (ICPC). This should not deter potential adoptive parents from considering interstate adoption, as a qualified attorney should be able to competently navigate the requirements of the ICPC without much added stress.

What is the Interstate Compact on the Placement of Children (ICPC)?
The ICPC is an agreement between all fifty states and some U.S. territories that allows for states to work together in the adoption process to safeguard the interests of the child. The ICPC was established to protect children being placed for adoption across state lines. The Compact outlines proper procedures and delineates responsibilities for all parties involved in the placement of a child. Particularly, in the event that an adoption is disrupted, the child will be returned to the sending state in the custody of the birth mother or the agency that initiated the placement.

Many adoption attorneys have questioned whether the ICPC is a net plus in the interstate adoption process. However, compliance with the ICPC is mandatory and a material violation of the ICPC is a very serious matter. The careless acts of an ignorant attorney or potential adoptive parents can result in the loss of the adoption, and even in criminal penalties depending on the significance of the violation. A child should never be taken across state lines for the purpose of an adoptive placement without ICPC approval from the sending and the receiving state.

What is involved in a “home study”?
Under Virginia law, a home study must be conducted by a licensed or duly authorized child-placing agency in almost every adoption. The purpose of the home study is to ascertain: (i) whether the prospective adoptive parents are financially able, morally suitable, and in satisfactory physical and mental health to enable them to care for the child; (ii) the physical and mental condition of the child, if known; (iii) the circumstances under which the child came to live, or will be living, in the home of the prospective adoptive family, as applicable; (iv) what fees have been paid by the prospective adoptive family or on their behalf in the placement and adoption of the child; (v) whether both the birth parents and adoptive parents have been counseled on any and all other alternatives; (vi) if the birth parents and adoptive parents have exchanged the requisite identifying information (or mutually waived that right); (vii) whether or not there have been any violations of the statute concerning authorized and unauthorized payments between the adoptive and birth parents; and (viii) any other matters specified by the Circuit Court.