2006 Code of Virginia § 63.2-1202 - Parental, or agency, consent required; exceptions

63.2-1202. Parental, or agency, consent required; exceptions.

A. No petition for adoption shall be granted, except as hereinafter providedin this section, unless written consent to the proposed adoption is filedwith the petition. Such consent shall be in writing, signed under oath andacknowledged before an officer authorized by law to take acknowledgments. Theconsent of a birth parent for the adoption of his child placed directly bythe birth parent shall be executed as provided in 63.2-1233, and thecircuit court may accept a certified copy of an order entered pursuant to 63.2-1233 in satisfaction of all requirements of this section, provided theorder clearly evidences compliance with the applicable notice and consentrequirements of 63.2-1233.

B. A birth parent who has not reached the age of 18 shall have legal capacityto give consent to adoption and perform all acts related to adoption, andshall be as fully bound thereby as if the birth parent had attained the ageof 18 years.

C. A man shall be presumed to be the father of a child if:

1. He and the mother of the child are married to each other and the child isborn during the marriage;

2. (Effective until July 1, 2007) He and the mother of the child were marriedto each other and the child is born within 300 days after the marriage isterminated by death, annulment, declaration of invalidity, divorce, or aftera decree of separation; or

2. (Effective July 1, 2007) He and the mother of the child were married toeach other and the child is born within 300 days of their date of separation,as evidenced by a written agreement or decree of separation, or within 300days after the marriage is terminated by death, annulment, declaration ofinvalidity, or divorce; or

3. (Effective until July 1, 2007) Before the birth of the child, he and themother of the child married each other in apparent compliance with the law,even if the attempted marriage is or could be declared invalid, and the childis born during the invalid marriage or within 300 days after its terminationby death, annulment, declaration of invalidity, divorce, or after a decree ofseparation.

3. (Effective July 1, 2007) Before the birth of the child, he and the motherof the child married each other in apparent compliance with the law, even ifthe attempted marriage is or could be declared invalid, and the child is bornduring the invalid marriage or within 300 days of their date of separation,as evidenced by a written agreement or decree of separation, or within 300days after its termination by death, annulment, declaration of invalidity, ordivorce.

Such presumption may be rebutted by sufficient evidence that would establishby a preponderance of the evidence the paternity of another man or theimpossibility or improbability of cohabitation with the birth mother for aperiod of at least 300 days prior to the birth of the child.

D. Consent shall be executed:

1. By the birth mother and by any man who:

a. Is an acknowledged father under 20-49.1;

b. Is an adjudicated father under 20-49.8;

c. Is a presumed father under subsection C;

d. (Effective until July 1, 2007) Has registered with the Putative FatherRegistry pursuant to Article 7 ( 63.2-1249 et seq.) of this chapter; or

e. (Effective July 1, 2007) Is a putative father but who has not registeredwith the Putative Father Registry, if his identity is reasonablyascertainable.

2. By the child-placing agency or the local board having custody of thechild, with right to place him for adoption, through court commitment orparental agreement as provided in 63.2-900, 63.2-903 or 63.2-1221; or anagency outside the Commonwealth that is licensed or otherwise duly authorizedto place children for adoption by virtue of the laws under which it operates;and

3. By the child if he is 14 years of age or older, unless the circuit courtfinds that the best interests of the child will be served by not requiringsuch consent.

E. No consent shall be required of a birth father if he denies under oath andin writing the paternity of the child. Such denial of paternity may bewithdrawn no more than 10 days after it is executed. Once the child is 10days old, any executed denial of paternity is final and constitutes a waiverof all rights with respect to the adoption of the child and cannot bewithdrawn.

F. No consent shall be required of the birth father of a child when the birthfather is convicted of a violation of subsection A of 18.2-61, 18.2-63,subsection B of 18.2-366, or an equivalent offense of another state, theUnited States, or any foreign jurisdiction, and the child was conceived as aresult of such violation.

G. No notice or consent shall be required of any person whose parental rightshave been terminated by a court of competent jurisdiction.

H. No consent shall be required of a birth parent who, without just cause,has neither visited nor contacted the child for a period of six months priorto the filing of the petition for adoption. The prospective adoptiveparent(s) shall establish by clear and convincing evidence that the birthparent(s), without just cause, has neither visited nor contacted the childfor a period of six months prior to the filing of the petition for adoption.This provision shall not infringe upon the birth parent's right to be noticedand heard on the allegation of abandonment.

I. A birth father not married to the mother of the child may consent to thetermination of all of his parental rights prior to the birth of the child.

J. The failure of the nonconsenting party to appear at the scheduled hearing,either in person or by counsel, after proper notice has been given to saidparty, shall constitute a waiver of any objection and right to consent to theadoption.

(Code 1950, 63-351; 1954, c. 489; 1956, c. 300; 1960, c. 331; 1962, c. 603;1968, c. 578, 63.1-225; 1972, cc. 73, 475, 823; 1974, c. 620; 1978, cc.730, 735, 744; 1985, c. 18; 1986, c. 387; 1989, c. 647; 1993, c. 553; 1995,cc. 772, 826; 1999, c. 1028; 2000, c. 830, 63.1-219.10; 2002, c. 747; 2005,c. 890; 2006, cc. 825, 848.)