2006 Code of Virginia § 63.2-1233 - Consent to be executed in juvenile and domestic relations district court; exceptions

63.2-1233. Consent to be executed in juvenile and domestic relationsdistrict court; exceptions.

When the juvenile and domestic relations district court is satisfied that allrequirements of 63.2-1232 have been met with respect to at least one birthparent and the adoptive child is at least in the third calendar day of life,that birth parent or both birth parents, as the case may be, shall executeconsent to the proposed adoption in compliance with the provisions of 63.2-1202 while before the juvenile and domestic relations district court inperson and in the presence of the prospective adoptive parents. The juvenileand domestic relations district court shall accept the consent of the birthparent(s) and transfer custody of the child to the prospective adoptiveparents, pending notification to any nonconsenting birth parent, as describedhereinafter.

1. a. The execution of consent before the juvenile and domestic relationsdistrict court shall not be required of a birth father who is not married tothe mother of the child at the time of the child's conception or birth if thebirth father consents under oath and in writing to the adoption.

b. (Effective until July 1, 2007) The consent of a birth father who is notmarried to the mother of the child at the time of the child's conception orbirth shall not be required if the putative father named by the birth motherdenies under oath and in writing the paternity of the child. The mother may,but is not required to identify the father who is not acknowledged pursuantto 20-49.1, adjudicated pursuant to 20-49.8, or presumed pursuant to 63.2-1202.

b. (Effective July 1, 2007) The consent of a birth father who is not marriedto the mother of the child at the time of the child's conception or birthshall not be required if the putative father did not register with thePutative Father Registry pursuant to Article 7 ( 63.2-1249 et seq.) of thischapter and the identity of the birth father is not reasonably ascertainableor if the putative father named by the birth mother denies under oath and inwriting the paternity of the child.

c. When a birth father is required to be given notice, he may be given noticeof the adoption by registered or certified mail to his last known address andif he fails to object to the adoption within 15 days of the mailing of suchnotice, his consent shall not be required. An objection shall be in writing,signed by the objecting party or counsel of record for the objecting partyand shall be filed with the clerk of the juvenile and domestic relationsdistrict court in which the petition was filed during the business day of thecourt, within the time period specified in this section. When no timelyobjection is filed, no hearing on this issue is required. Failure of theobjecting party to appear at any scheduled hearing, either in person or bycounsel, shall constitute a waiver of such objection.

d. The juvenile and domestic relations district court may accept the writtenconsent of the birth father who is not married to the birth mother of thechild at the time of the child's conception or birth, provided that theidentifying information required in 63.2-1232 is filed in writing with thejuvenile and domestic relations district court of jurisdiction. Such consentshall advise the birth father of his opportunity for legal representation,and shall be presented to the juvenile and domestic relations district courtfor acceptance. The consent may waive further notice of the adoptionproceedings and shall contain the name, address and telephone number of thebirth father's legal counsel or an acknowledgment that he was informed of hisopportunity to be represented by legal counsel and declined suchrepresentation.

e. In the event that the birth mother's consent is not executed in thejuvenile and domestic relations district court, the consent of the birthfather who is not married to the birth mother of the child shall be executedin the juvenile and domestic relations district court.

f. A child born to a married birth mother shall be presumed to be the childof her husband and his consent shall be required, unless the court finds thatthe father's consent is withheld contrary to the best interests of the childas provided in 63.2-1205 or if his consent is unobtainable. The consent ofsuch presumed father shall be under oath and in writing and may be executedin or out of court. The presumption that the husband is the father of thechild may be rebutted by sufficient evidence, satisfactory to the juvenileand domestic relations district court, which would establish by apreponderance of the evidence the paternity of another man or theimpossibility or improbability of cohabitation of the birth mother and herhusband for a period of at least 300 days preceding the birth of the child,in which case the husband's consent shall not be required. If the court issatisfied that the presumption has been rebutted, notice of the adoptionshall not be required to be given to the presumed father.

2. A birth parent whose consent is required as set forth in 63.2-1202,whose identity is known and who neither consents before the juvenile anddomestic relations district court as described above, nor executes a writtenconsent to the adoption or a denial of paternity out of court as providedabove, shall be given notice, including the date and location of the hearing,of the proceedings pending before the juvenile and domestic relationsdistrict court and be given the opportunity to appear before the juvenile anddomestic relations district court. Such hearing may occur subsequent to theproceeding wherein the consenting birth parent appeared but may not be helduntil 15 days after personal service of notice on the nonconsenting birthparent, or if personal service is unobtainable, 10 days after the completionof the execution of an order of publication against such birth parent. Thejuvenile and domestic relations district court may appoint counsel for thebirth parent(s). If the juvenile and domestic relations district court findsthat consent is withheld contrary to the best interests of the child, as setforth in 63.2-1205, or is unobtainable, it may grant the petition withoutsuch consent and enter an order waiving the requirement of consent of thenonconsenting birth parent and transferring custody of the child to theprospective adoptive parents. If the juvenile and domestic relations districtcourt denies the petition, the juvenile and domestic relations district courtshall order that any consent given for the purpose of such placement shall bevoid and, if necessary, the court shall determine custody of the child asbetween the birth parents.

3. Except as provided in subdivision 4, if consent cannot be obtained from atleast one birth parent, the juvenile and domestic relations district courtshall deny the petition and determine custody of the child pursuant to 16.1-278.2.

4. If the child was placed by the birth parent(s) with the prospectiveadoptive parents and if both birth parents have failed, without good cause,to appear at a hearing to execute consent under this section for which theywere given proper notice pursuant to 16.1-264, the juvenile and domesticrelations district court may grant the petition without the consent of eitherbirth parent and enter an order waiving consent and transferring custody ofthe child to the prospective adoptive parents, which order shall becomeeffective 15 days thereafter. Prior to the entry of such an order, thejuvenile and domestic relations district court may appoint legal counsel forthe birth parents and shall find by clear and convincing evidence (i) thatthe birth parents were given proper notice of the hearing(s) to executeconsent and of the hearing to proceed without their consent; (ii) that thebirth parents failed to show good cause for their failure to appear at suchhearing(s); and (iii) that pursuant to 63.2-1205, the consent of the birthparents is withheld contrary to the best interests of the child or isunobtainable. Under this subdivision, the court or the parties may waive therequirement of the simultaneous meeting under 63.2-1231 and therequirements of subdivisions A 1, A 3, and A 7 of 63.2-1232 where theopportunity for compliance is not reasonably available under the applicablecircumstances.

5. If both birth parents are deceased, the juvenile and domestic relationsdistrict court, after hearing evidence to that effect, may grant the petitionwithout the filing of any consent.

6. No consent shall be required from the birth father of a child placedpursuant to this section when such father is convicted of a violation ofsubsection A of 18.2-61, 18.2-63, subsection B of 18.2-366, or anequivalent offense of another state, the United States, or any foreignjurisdiction, and the child was conceived as a result of such violation, norshall the birth father be entitled to notice of any of the proceedings underthis section.

7. 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 the respect to the adoption of the child and cannot bewithdrawn.

8. 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.

9. The juvenile and domestic relations district court shall review each orderentered under this section at least annually until such time as the finalorder of adoption is entered.

(1989, c. 647, 63.1-220.3; 1991, cc. 364, 602; 1992, c. 125; 1993, cc. 338,553; 1995, cc. 772, 826; 1999, c. 1028; 2000, c. 830, 63.1-219.40; 2002, c.747; 2005, c. 890; 2006, cc. 825, 848.)