Virginia law allows a stepparent to adopt a stepchild by filing in circuit court to adopt their spouse’s child by birth or adoption. While the process is similar to other kinds of adoptions, stepparent adoptions have discrete requirements in Virginia.
Does stepparent adoption terminate the other birth parent’s rights?
Stepparent adoptions are the only statutory exception to the rule that adoption terminates parental rights. A stepparent adoption may, but does not have to, include the termination of the parental rights and responsibilities of the child’s other birth or adoptive parent.
What if the child’s other parent does not consent?
Ideally, the other birth parent of the child consents to the proceeding. When an acknowledged, adjudicated, presumed or putative birth parent refuses to consent, the Court must determine whether or not the consent is required (i.e., whether the other parent has abandoned or is withholding consent contrary to the child’s best interests). If the parent fails to appear at the hearing after being notified and served, the Court may also find consent is not necessary. Additionally, under Virginia law, there may be other circumstances in which consent is not required.
Can I change my child’s name in a stepparent adoption?
Yes, you can ask the Court to approve a name change for the child in the petition.
Can same sex couples petition for stepparent adoption?
How long does a stepparent adoption take?
From filing to final order, a stepparent adoption usually takes anywhere from one to four months, depending on whether the case requires litigation of consent issues.
Is a home study or investigation required for stepparent adoption?
The judge may waive the requirement that he refer the matter to the Departmtent of Social Services for an investigation and report. Likewise the court may waive the appointment of a guardian ad litem to advise the Court of the child’s interests.
Certain close family members of a child (in Virginia “close relative” includes grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt) may adopt a child through an expedited procedure depending on the length of time that the child has been living with the close relative.
What if the child has lived with the close relative less than two years?
If the child has been living with the close relative less than two years, then the case begins in juvenile and domestic relations court. Close relative placements less than two years require the birth parents’ consent (or evidence that consent is not required). In these cases, a home study is required, a guardian ad litem must be appointed, and the court will conduct a hearing. The adoption will not be final until the circuit court enters a final order once consents are received in juvenile court.
What if the child has lived with the close relative two years or more?
If the child has lived with the close relative two years or more, the case begins in circuit court. In these cases, the circuit court will typically not require an order of reference initiating an investigation and report by the Department of Social Services, and no home study is required. Likewise, the circuit court may waive the appointment of a guardian ad litem to represent the child’s interests.
The Hague Convention on the Civil Aspects of International Child Abduction (commonly referred to as the Hague Abduction Convention or simply the Abduction Convention) is a nuanced, narrow area of international law intended to protect children from international abduction when custody disputes cross borders.
Often, these cases arise in the context of a divorce/child custody proceeding or after a child has been retained by a parent in another country that is not the child’s habitual residence without consent. Both countries must be party to the convention.
The Hague Abduction Convention applies if your child was habitually resident in one Convention country and was wrongfully removed or retained in another Convention country.
The removal or retention of your child is considered wrongful if it was in violation of your custodial rights. The Convention must have been in force between the two countries when the wrongful removal or retention occurred. The child must be under the age of 16.
Poarch Thompson Law has developed a high level of expertise in these cases and assists both families and family law attorneys in litigating those claims, usually in federal court.
Parental placement refers to any adoption case in which the parent chooses with whom to place the child where that placement does not involve a stepparent or close relative adoption.
In a parental placement adoption, the birth parent consents directly to the adoption of his or her child and then both legal custody and ultimately, all parental rights, pass directly from the birth parent(s) to the adoptive parents. An agency is involved to assist the court in determining whether the parent’s consent is valid or whether the adoptive placement is suitable. While most parental placements involve infants, parental placements may occur with children of all ages.
What is the process for adopting a child through parental placement?
Where a child is placed with adoptive parents by a birth parent, the case begins in juvenile and domestic relations court. The court accepts the birth parent(s) consent or finds the consent is not required. A home study is required. Only after the juvenile court issues an order accepting the consents can the case be finalized in circuit court.
What if I am adopting an infant?
While the procedures do not change based on the age of a child, a birth mother’s consent cannot be accepted by the juvenile court until after the child’s birth. Moreover, adoptive parents must comply with certain due process protections and disclosures to get the juvenile court order.
Adopting children is an exciting and confusing process. If you’re pursuing international adoption, there are three different sets of law you have to understand and work with, and they are U.S. federal law, state law, and the laws of the child’s country of birth. Overseas adoptions are complex, so it’s wise to have the support of an immigration attorney. Poarch Thompson Law will help your family follow the law and stay together, from the selection of your country to citizenship for your adopted child.
Child Citizenship & Country of Origin
The laws of the country your child was born in will dictate the adoption process. Therefore, when possible, it is wise to choose a country with the least amount of legal hurdles. Countries may restrict certain individuals from adopting their children. You’ll also want to know if the country is part of the Hague Convention.
Three processes to Immigrate Adopted Children
You will need to use one of three processes to adopt your child:
Hague Adoptions: For countries that are part of the Hague Convention.
Orphan Adoption: Countries that are not part of the Hague Convention and when the child is an orphan, as defined by U.S. law.
Other Adoption: This is for unusual circumstances where the child is already considered your child, whether or not they were an orphan when you adopted them. Sometimes, there is a blood relationship between the “parent” and “child.” For example, this process may be used to adopt siblings of your already-adopted child.
The Hague Treaty is an international convention. Several countries agreed to it to govern the international adoption process. If the country you are adopting your child from is part of the Hague adoption process, you must use it.
Hague Adoption Eligibility
In order for you to be eligible for a Hague adoption:
You must be a U.S. citizen and live here.
You must be at least 25 years of age when you file form I-800.
If you are married, your spouse must intend to adopt your child as well and must sign your form I-800A.
What steps are involved in a Hague Adoption?
To adopt children through the Hague process, you must:
Choose an adoption agency that is Hague accredited.
Obtain a home study. (Read more on this process below.)
Apply to USCIS before accepting a child or a placement. Use form I-800 to determine your eligibility.
After approval from USCIS, gain a placement from your adoption agency.
Before adopting the child, file a petition to adopt the child with USCIS with form I-800A. The child must be found eligible.
Adopt the child by the home country’s laws or obtain custody in order to adopt them in the United States.
Apply for an immigrant visa for the child.
Bring the child to the United States.
Home Study Process
Your state’s home study agency will complete a home study with you. Each agency will have different requirements and ask different questions. Overall, the state uses the home study to determine if you are eligible to adopt a child.
Visa types for Hague Adoptions
There are two visa types for Hague adoptions:
IH-3: For children who have a full and complete adoption already.
IH-4: For children who will be fully adopted in the United States.
Orphan adoptions are for children who are not from Hague countries and who meet the following criteria:
Does not have any parents because the biological parents have left the child as an orphan due to loss, death, abandonment, separation, desertion or disappearance
Or has one sole surviving parent who has irrevocably released the child to be adopted abroad, in writing, in accordance with the home country’s laws and is incapable of providing proper care
What steps are involved in an Orphan Adoption?
The orphan adoption process is more straightforward for adoptive parents:
Have the USCIS or Department of State conduct an overseas investigation.
Have a home study completed and submitted.
File form I-600 for your child.
Once the petition is granted, apply for a visa for your child.
Once the visa is granted, bring your child to the United States.
Do I need to have a Home Study conducted?
As an adoptive family using the orphan process, you must have a home study conducted by your home state.
Visa types for an Orphan (Non-Hague) Adoption
IR-3: for children whom you adopted abroad in their home country
IR-4: for children whose adoption will be finalized in the United States
Immigrating other Adopted Children.
This third method of adopting children is sometimes referred to as the family-based petition process.
In order to use this process, you must have completed a full and final adoption in the child’s home country. The adoption must have been completed when the child was under 16, and they must have been in your physical and legal custody for two years before immigrating. That two-year wait period is waived for children who were abused in their previous home.
The requirement that the child is under 16 when adopted is also waived for children who are blood-related to your other adopted child or children. These children must be under the age of 18.
How Poarch Thompson Law can help?
Choosing the wrong process, adopting a child before you’re approved to, or making other mistakes can negatively impact your adoption efforts. Working with the experienced immigration attorneys at Poarch Thompson Law will give you the peace of mind that you need to welcome your new child to the United States and their adoptive family. Reach out to us today for guidance.
Request for Evidence (RFE) and Notice of Intent to Deny (NOID)
After you submit a petition or application to USCIS, they may respond in a number of ways. Sometimes, they use requests for evidence (RFE) and notices of intent to deny (NOID) to alert you to problems with your application or petition. Both of these hurdles can be successfully overcome, especially with the help of an experienced immigration attorney. Allow us to answer your most common questions about requests for evidence (RFE) and notices of intent to deny (NOID).
What is a Request for Evidence (RFE)?
A request for evidence is USCIS’s notice that your petition is missing evidence that they need to decide your petition or application. The RFE will tell you what evidence or kind of evidence is missing. You must respond timely to these requests. RFEs are increasingly common in any and every type of filing from employment-based non-immigrant visa filings to U Visa or special immigrant status filings.
What is a Notice of Intent to Deny (NOID)?
A notice of intent to deny informs you of defects that are serious enough that USCIS is considering denying your petition or application. It also requires a timely response and may result in denial if the applicant or petitioner cannot adequately address the issues set forth in the NOID.
How an RFE differs from a NOID
While a request for evidence tells you that the USCIS cannot evaluate your petition or application in its current form, a NOID is more serious and tells you that USCIS can deny your petition or application in its current form. Usually, this means that you don’t meet the criteria for the visa, green card, or adjustment of status for which you applied. Most importantly, the timeline for responding is different. A NOID usually only permits 33 days for a response, while an RFE usually permits approximately 87 days. The deadline for response will be stated clearly on the RFE or NOID.
New policies surrounding RFEs and NOIDs
New policy has been implemented which grants USCIS the ability to simply deny any petition or application that is missing substantial information or that, in its current form, does not meet the standard of proof necessary for the visa type. While prior to September 1, 2018, USCIS would have issued either an RFE or NOID to these applicants, your request may now be denied outright. This can have serious consequences and as a result, requires competent, legally sufficient filings initially.
What to do if you received an RFE or a NOID
Contact a competent immigration attorney immediately. Do not respond partially to the RFE or noiD before speaking with an immigration attorney. Once USCIS receives a partial response or partial evidence, they may issue a denial based on the limited evidence they received. Many RFEs or NOIDs can be overcome with the assistance of competent counsel, but not all. The earlier you are able to receive good legal advice on whether or how to respond, the more likely you are to prevail with USCIS.
Failure to respond to an RFE or NOID
If you do not respond before the deadline, or if you respond inadequately to USCIS’ request, your application or petition will be denied.
Denials after RFE and NOID
In certain circumstances, you can appeal a denial, although not all denied petitions permit appeal. Sometimes, you may move to reopen the case for adjudicator error or have USCIS reconsider your petition in light of new evidence or law. Sometimes, the only option is to apply for a new visa type.
How can Poarch Thompson Law help?
Requests for evidence (RFE) and notices of intent to deny (NOID) may be stressful. Even if you’ve done your best to determine your eligibility and send the proof USCIS requests, you may make simple errors that have unfortunate consequences. Call us today.