Taking on parental responsibilities for children from previous relationships is common in Virginia, and many stepparents are happy to care for their new stepchildren.
Often, the stepparent becomes as close to their stepchildren as they would their own child. In these cases, the stepparent may want to take the steps to legally adopt the child.
In Virginia, there are specific requirements and steps you have to take in order to adopt a stepchild. This article will cover the basics of this process.
Should I Adopt My Stepchild?
It may feel like your stepchild is your biological child already, especially if they live with you all or most of the time.
However, in Virginia, your stepchildren will only gain the same legal protections as your biological children if you legally adopt them.
Generally speaking, there are three reasons why you would want to legally adopt a stepchild:
- Increased financial and legal responsibility as a result of becoming their legal guardian
- Easier intestate succession
- Personal reasons
We’ll go into further detail for each below.
1) You’ll gain financial and legal responsibility for your stepchild.
As the child’s legal parent, you’ll have an increased responsibility and privilege to provide for your child.
Similarly, you’ll also have greater powers to make legal decisions on their behalf without the approval of either biological parent, such as for emergency medical care.
Further, establishing a permanent legal relationship with your stepchild does not just come with benefits for you, it will also benefit your stepchild.
For example, he or she will then be eligible for benefits such as coverage under your medical insurance.
It also protects your stepchild by ensuring they will have a legal guardian should something happen to your spouse.
As another added bonus, by legally adopting the child you can also choose to change the child’s name to match your new family name.
2) Your child can more easily inherit from you.
If you die without a will in Virginia, your estate will go to your closest relatives under the state’s “intestate succession” laws.
By legally adopting your child, they gain the same intestate rights as any of your biological children.
Because of this, they can more easily benefit from any health or life insurance policies, and will have an easier time managing your estate after your death.
It’s important to note that timing is incredibly important here.
To quote from the Virginia Code:
“If…[when determining the rights of wills, trusts, intestate, etc.] a relationship of parent and child must be established…an adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.”Virginia Code § 64.2-102
Essentially, what this means is that if you adopt your partner’s child before you marry your spouse, the child’s legal parents are only you and your spouse.
If, however, you wait to adopt the child until after your marriage, then all three of you are technically the child’s legal parents.
The purpose of this note is to point out a common complication that appears in adopting stepchildren.
Namely, if you adopt a child before your marriage, that child is excluded from inheriting from the other parent under the normal intestate process.
Similarly, if you adopt them after marrying your spouse, you have the same legal obligations as the child’s two biological parents, and they can inherit normally from all three of you.
3) You can show parental devotion.
Of course, some stepparents choose to adopt as an expression of love and commitment to their stepchild.
In most cases, individuals choose to adopt their stepchildren as a way to make them feel more like “part of the family.”
It’s up to you to decide whether adoption is right for your personal situation.
Some Negative Impacts of Adoption
There are also a few negative impacts of adoption that you should watch out for.
As a few of the most common:
- If the child is receiving support from the other parent (not your spouse), adopting the child could potentially end this support.
- If your marriage with your spouse ends, your legal and financial responsibility to the child will continue regardless.
- Generally speaking, if may put pressure on what may already be a strained family dynamic by asking a biological parent to give up their rights.
Again, choosing whether or not to adopt a stepchild will largely depend on your personal situation and the goals that you have for your family.
For this reason, you’ll want to speak the process over with an attorney before making any lasting decisions.
How Do I Adopt My Stepchild?
Adopting a stepchild is actually easier than you would think.
Most commonly, the birth parents and stepparent will simply file a petition for the stepparent to adopt the child with their local court.
They can do so by meeting any one of the following conditions, as required by Virginia Code § 63.2-1241:
- The other birth parent is deceased.
- The other birth parent consents to the adoption. This must be done in writing and under oath.
- The birth father is unknown. The mother must swear under oath and in writing that she can’t reasonably ascertain who the father is.
- The birth father denies paternity of the child.
- The child is over 14, agrees to the adoption, and has been living with the stepparent for five or more years.
Even if the birth parent and step-parent meet these parameters, the court may still order an investigation.
As with all cases involving children, the court’s main goal to make sure the adoption is in the best interest of the child.
You should expect the process to take at least 3 months.
In some cases, such as if the other parent refuses to consent, it can take much longer.
What about adult adoptions?
A stepparent may decide to adopt a stepchild even after the child has become an adult.
According to Virginia Code § 63.2-1243, only the consent of the adult stepchild is needed for this kind of adoption.
The only other requirement is that the stepparent has stood in loco parentis (in the place of a parent) for over 3 months.
What if the Other Birth Parent Refuses to Consent?
On the other hand, it’s rather difficult for a stepparent to adopt a stepchild if the other birth parent contests the adoption.
As noted in section 2.2 above, adoption essentially either:
- Adds an additional parent to the child’s situation (if the new couple is married), splitting parental responsibilities among three people instead of two. Or;
- Takes parental responsibilities away from the biological parent if the new couple has yet to marry. In this situation, the biological parent would lose all rights to custody, legal decisions, etc.
For these reasons, having the consent of the other parent is critical when adopting your stepchild.
However, there are a few steps you can follow even if the other parent refuses.
Step 1) Hire a Lawyer
If the birth parent and stepparent truly feel that adoption would be in the child’s best interest, they should seek the services of an experienced family lawyer.
Just like in normal custody battles, you’ll have to appear in court to argue for why the biological parent should either (1) share their parental rights with another person, or (2) lose their parental rights entirely.
This will require a solid argument in court.
Step 2) Make Your Case
As we stated above, the court will always decide cases such as these based on the best interests of the child.
For this reason, your argument for why you should be able to adopt your stepchild against the wishes of the other biological parent will center on why such an adoption is necessary for the child.
As simply one example, your lawyer may be able to prove abandonment by the other birth parent if they skipped town a few years ago and never returned.
Specifically, in Virginia, if the other parent hasn’t had substantial contact with the child in over 12 months, they are considered to have abandoned their child.
Step 3) The Court Decides
After you make your case, the court will determine whether or not to move on with the adoption without the birth parent’s permission.
Sometimes the court will grant the adoption with just a hearing. Alternatively, they may order an investigation into the matter.
The court can even appoint a guardian ad litem to interview the parents and gather more information before making the final decision.
Stepparent adoptions are the most common adoptions performed in the United States.
There are many blended families in the U.S., and often the stepparent is eager to take on financial and legal responsibility for their stepchild by legally adopting them.
To adopt your stepchild in Virginia, you’ll first file in the county where you live.
Then, you must obtain the consent of the other birth parent.
If the other parent consents, the rest of the process is fairly straightforward.
If the other parent won’t consent, you’ll have to make your case in court that the adoption is in the child’s best interest.