Child Custody & Adoption

By Stephanie Reid

Legal adoption occurs when both biological parents give up their parental rights to a non-biological parent or parents. The court then awards the adoptive parents full legal custodial rights over the child. Custody rights over a child can be either legal custody, physical custody or both. These rights may be held by biological parents, third parties or a state welfare agency. Obtaining custody over a child may be the first step toward adopting the child, particularly in the context of a state child-welfare agency and the foster care system.

Parental Child Custody

The most basic form of child custody is the child's biological parents. When parents divorce or are unable to agree on a custody arrangement, the court will make a determination as to which parent will have legal and physical custody. Legal custody refers to the right of the parent to make decisions concerning the child's medical care, education, religious affiliations, discipline and other factors that affect the child's life. Physical custody, also known as physical placement, refers to the residence where the child spends the majority of his time. The court makes custody decisions in the child's best interests and the court will consider the child's adjustment to his school, surroundings and community, the parent's wishes, the parent's background and ability to act as parent. The court considers the child's wishes, if the child is old enough to assert his preferences with regard to living arrangements and custody, generally around age 14.

Third-Party Child Custody

Non-parent third parties may obtain child custody rights when biological parents consent to the arrangement or if it becomes necessary under the circumstances to grant custody to a third party. Third-party custody rights may vest in a grandparent, a stepparent, an immediate family member or other adult with a strong relationship with the child. Courts may award third-party custody when the parents are unable to fulfill their roles due to reasons including substance abuse, incarceration, incapacity, absence from the state or country, deployment or death.

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State Child Custody

If a child is abused, neglected or dependent, the state child-welfare department will assume custody over the child until the biological parents are able to overcome their parenting obstacles or their rights are terminated. Once a child has entered state custody, the state will arrange for the child to live with a foster family pending the outcome of the case. Generally, the biological parents have one year to work toward reunification with the child before child welfare changes the goal to termination of parental rights and adoption.

Adoption Following Custody

Adoption is only possible if the biological parents have given up their parental rights. Parents may give up their rights voluntarily or the court may terminate their rights after a finding that the parent has engaged in physical or sexual abuse, abandonment, neglect, alcohol- or drug-induced incapacity or suffers from mental illness. Once the court terminates legal parental rights, the court will examine adoptive resources for the children and most often will turn to the individual or family with the closest bond with the child. If a third party holds custody rights over the child, it is likely the court will inquire as to whether that party wishes to adopt. The same is true for a foster family who has cared for the child in the months or years preceding the termination of parental rights.

Adoption Procedures

Even if a child has lived with a third-party non-parent or foster family for a significant time, the state still must follow extensive procedures before officially recommending the adoptive placement. An individual or a family pursuing adoption through foster care must consent to a full home study, including interviews of others who live in the home and an inspection of the residence. Many states require adoptive parents to take parenting classes or participate in parent-child interaction therapy. For children adopted through the foster care system, a judge will not formally legalize the adoption until six months to a year after the court first placed the child with the family. Private adoptions not involving state custody may move more quickly, particularly if both parents consent to the arrangement.

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Divorce & Adoption

When a couple decides to get divorced during an adoption process, it does not necessarily halt the adoption, although the impact of divorce will depend upon the type of adoption involved. Parents of children whose adoption is finalized before the divorce will have the same rights as biological parents with regard to custody, visitation and child support. Divorce proceedings occurring prior to the finalization of the adoption could hurt the progression of the adoption, depending on the individual circumstances. There is also an interplay between adoption subsidies and the receipt or payment of child support.

Child Custody Laws in Virginia

The custody laws in all states, including Virginia, consider the best interests of children under 18 years of age when making custody rulings. Often, the parents will come to an agreement about child custody. The judge then reviews that agreement and, in most circumstances, will turn it into a formal court order. More complex state custody challenges involve the legal determination of a biological parent and requests for emergency hearings to remove a child from a custodial parent or revoke parent visitation rights when abuse or violence threatens the child.

Adoption Vs. Legal Guardianship

Adoption and legal guardianship are often confused with each other, but they are two different routes to caring for a child whose parents or other guardians are unable to provide a home. A legal guardianship makes you responsible for the child until he reaches age 18. An adoption makes the child's legal status the same as if he was your birth child. Each method has its advantages and disadvantages.

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