Children

§ 3-1.   Adoption
(A) Generally
(B) Best Interests
(C) Consent
(1)        Abandonment
(2)        Consent Withheld Contrary to Best Interests
(D) Putative Fathers
§ 3-2.   Custody
(A) Criteria
(1)        In General
(2)        Fault
(3)        Legitimacy
(4)        Tender Years
(5)        Wishes of the Child
(B)       Divided Custody
(C)       Third Parties
(1)        Custody
(2)        Visitation
(D)       Legal Custody
(E)       International Child Abduction/Hague Convention
(1)        Personal
(2)        Subject Matter
(3)        Transfer
(4)        Uniform Child Custody Jurisdiction and Enforcement
(F)       Relocation
(G)       Modification of Custody
(H)       Natural Parents
(I)        Visitation
(J)        Basis of Decision
(K)       Conditions
§ 3-3.   Parent – Child
(A)       Termination of Parental Rights
(1)       Transfer
(2)       Appeal to Circuit Court
(3)       Entrustment Agreements
(4)       Foster Care Plan
(B)       Criminal Neglect
(C)       Name Change
(D)       Abuse and Neglect
(1)       Abuse/Neglect Proceedings
(2)       Evidence of Abuse/Neglect
(E)       Protective Orders
(F)       In loco parentis (Parent-Child)
§ 3-4.   Paternity
(A)       Generally
(B)       Assisted Conception
§ 3-5.   Guardianship
§ 3-6.   Tortious Interference

Chapter 3

CHILDREN

      § 3-1.   Adoption

      (A) Generally

2015 --- Harvey v. Flockhart, 65 Va. App. 131
The circuit court correctly determined that the children’s foster parents could proceed to adopt the children. The foster parents originally received custody of the children as foster parents and satisfied the other requirements of Code of Virginia § 63.2-1229. The fact that the foster parents subsequently petitioned for and were awarded custody of the children did not terminate their status as foster parents for purposes Code of Virginia § 63.2-1229. Similarly, nothing in Code of Virginia § 16-1-281 provides that foster parents cease to be foster parents when they petition for, and are awarded, child custody. The plain meaning of “foster parent” is “an adult who, though without blood ties or legal ties, cares for and rears a child.” The argument that, by petitioning for and receiving custody of a foster child, foster parents cease to be foster parents for purposes of adopting that child, runs contrary to the manifest legislative intent that foster parents be given the opportunity to adopt the children who have been placed in their care.

2014---Hardy v. Poston, Va. Court of Appeals, Unpublished, No. 0869-14-3

The trial court did not err in proceeding with the paternal grandmother’s petition for adoption after granting Father’s motion to strike the grandmother’s petition to terminate Father’s parental rights. Although the grandmother attached her separate petition to terminate Father’s parental rights as an exhibit to her adoption petition, she clearly requested in her adoption petition for leave to adopt Father’s minor children. Further, the trial court clearly followed the procedures set forth in Code of Virginia § 63.2-1200 et seq, which applies adoptions where the biological parent withholds consent, rather than the procedures set forth in Code § 16.1-283, which applies to the termination of residual parental rights.

2010--- In Re: C.J.F. & W.R.F., Va. Ct. of Appeals, Unpublished, No. 0056-10-4
Trial court did not abuse discretion in refusing the guardian ad litem’s request for a formal hearing prior to entering final orders of step-parent adoption. Although the guardian raised affirmative defenses in his answer to the adoption petitions, he waived those defenses when he and all parties subsequently signed an interlocutory consent order agreeing that, pursuant to Va. Code §63.2-1242, a formal hearing and investigation was not necessary prior to the entry of the final adoption order. Moreover, upon renewing his objections subsequent to the interlocutory consent order but prior to the entry of the final orders, the guardian was granted two additional opportunities to present evidence of his concerns, but failed to avail himself of either opportunity.

2006---McCallum v. Salazar, 49 Va. App. 51
Trial court erred in dismissing biological father’s amended petition to vacate an adoption order on the ground that Va. Code §63.2-1216 barred father’s fraud claim because he filed more than six months after discovery of the alleged fraud.  The trial court was still required to decide (1) whether father asserted a viable extrinsic fraud claim justifying a collateral attack on the adoption order, and (2) whether the intended application of Va. Code §63.2-1216, as applied to the fraud claim, violated father’s procedural due process rights.

2005---Davenport v. Little-Bowser, 269 Va. 546
The trial court erred in holding that Va. Code §32.1-261  and 12 VAC §5-550-330 prevent new birth certificates listing both adoptive parents from being issued for children born in Virginia who have been validly adopted by same-sex couples outside of Virginia.  Nothing in the statute precludes recognition of same-sex couples as adoptive parents or requires that forms listing only one mother and one father be used.

1998---Richmond DSS v. Carter, 28 Va. App. 494
The trial court erred in requiring DSS to prove by clear and convincing evidence that a change in the foster care review plan from reunification to adoption was in the best interests of the child. A “preponderance of the evidence” standard is the appropriate standard of proof for proceedings arising under Va. Code 16.1-282.

1989---NPA v. WPA, 8 Va. App. 246
The common law as it developed in Virginia did not recognize adoption other than by statutory process. Since Virginia does not recognize common law adoption, the rights and responsibilities incidental thereto, such as support, likewise do not exist.

1987---Frye v. Spotte, 4 Va. App. 530
The welfare of the child is the guidepost in every custody and adoption proceeding. Nevertheless, the rights of parents may not be lightly severed but are to be respected if at all consonant with the best interests of the child. The natural bond that exists between a parent and a child should be accorded great weight. An adoption over objection by a natural parent should not be granted except upon clear and convincing evidence that the adoption would be in the child’s best interest.

      (B) Best Interests

2014--- Murray v. Sensabaugh, Va. Ct. of Appeals, Unpublished, No. 2100-12-2
The trial court did not err in terminating Mother’s visitation rights with her Child. The evidence showed that Mother, among other things: frequently drove the child without a valid driver’s license; returned the child to the prospective adoptive parents dirty, injured, or hungry; failed to complete a parenting class; posed in vulgar photos posted on a commercial website; and eventually abandoned the child by voluntarily discontinuing visitation. Additionally, the Child was healthy and thriving in the prospective adoptive parents’ care. Accordingly, the evidence supported the trial court’s conclusion that continued visitation with Mother was not in the Child’s best interests.

2014---Gregory v. Martin, Va. Ct. of Appeals, Unpublished, No. 0431-14-3
The circuit court erred by denying Mother’s motion for visitation with the child and granting the paternal aunt’s petition regarding adoption without hearing all the evidence. Despite the lack of evidence, the circuit court concluded that Mother had no recent contact with the Child and had been incarcerated too long. Consequently, the circuit court erred by failing to conduct a de novo trial.

2012---Graham v. Owens, Va. Ct. of Appeals, Unpublished, No. 0899-12-1
The standard for granting an adoption over a birth parent’s objection is more than a finding that the adoption would promote the child’s best interests. The trial court must consider factors, including: the birth parents’ efforts to obtain or maintain legal and physical custody of the child; whether the birth parents are currently willing and able to assume full custody of the child; the birth parents’ ability to care for the child; the age of the child; the quality of the relationship between the birth parents and any other minor children; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child. The trial court did not err in granting a stepparent adoption despite the biological father’s objection thereto. The biological father was serving an active sentence of 33 years in prison for convictions of sodomy against another child from a previous relationship, and possession and production of child pornography. The child in question had been in the exclusive custody of the mother and living in the home of the mother and the adoptive father for over five years, and was thriving.

2011---Chittum v. Hippenstiel, Va. Ct. of Appeals, Unpublished, No. 0028-11-1
The trial court did not err in determining adoption by the child’s stepfather to be in the child’s best interests and that a continued relationship between the child and her biological father would be detrimental to the child. Father saw the child for ten minutes when the child was one month old. One month later, he attempted to see the child again, but the mother denied his request because he was screaming, yelling, and driving erratically up and down the street on which she lived. Father also called the mother once, when the child was four years old. Other than those three occurrences, Father had never tried to contact or visit the child. Other than contesting paternity when the child was born, he had never filed any action seeking custody of or visitation with the child. Moreover, father had been incarcerated periodically throughout the child’s life for malicious wounding, violation of probation, and a third offense of assault and battery, and had a history of substance abuse and domestic violence. The child had lived with mother and stepfather since she was one and a half years old, and was thriving in the current, stable environment.

2011---Eiseman v. Beaudoin, Va. Ct. of Appeals, Unpublished, No. 1473-10-1
The trial court did not err in determining adoption by the child’s stepfather to be in the child’s best interests and that a continued relationship between the child and his biological father would be detrimental to the child. Shortly after the child’s birth, the biological father consented to the mother’s sole custody of the child, and never filed petitions nor indicated at trial an intent to ever file petitions to change the custody situation. During the three years preceding the petitions for adoption, the biological father had only visited the child on seven occasions, each of which was supervised by the mother. The biological father had used illegal drugs off and on since 2002, and in 2007 and 2008, was convicted of a total of eleven criminal charges, including felonies for theft, forgery, and illegal drug offenses. The child had lived with the mother and stepfather since 2006, and evidence revealed that the child was thriving in the current environment.

2010--- In Re: C.J.F. & W.R.F., Va. Ct. of Appeals, Unpublished, No. 0056-10-4
Trial court did not err in finding adoption to be in the children’s best interests, where stepfather and mother were financially, physically, and mentally able to maintain adequately and are morally suitable and proper persons to care for and train the children; and where the children’s counselor found that both children accepted the adoption, were not concerned, and were looking forward to it.

1996---Knight v. Laney, Va. Ct. of Appeals, Unpublished, No. 1190-95-1
Trial court did not err in finding that adoption was in the best interests of the child, over mother’s objection, where the child was born prematurely with a positive drug screen for opiate, cocaine, metabolites, and amphetamines, and was addicted at birth to cocaine, heroin and Xanax. The mother was incarcerated at the time of the interlocutory hearing, and none of the parties were able to state when she would be released. The mother had provided no financial support or physical care for the child since the child was two months old, and the relationship, if any, that the mother had had with the child in the first two months had been detrimental to the child’s health and welfare.

      (C) Consent

      (1) Abandonment

2011---Copeland v. Todd, 282 Va. 183
The trial court erred in finding that a natural mother’s consent to adoption was unnecessary pursuant to Va. Code §63.2-1202(H), where the natural mother had had brief contact with the child during the six months immediately preceding the filing of a petition for adoption. The natural mother’s lone contact with the child during the year preceding the filing of the adoption petition came when the adoptive mother met personally with the natural mother to seek her consent to the adoption, at which point the natural mother visited with the child for 30 minutes. Despite the circuit court’s finding that, but for the adoptive mother’s one attempt to secure the natural mother’s consent, the natural mother might have continued to voluntarily ignore the child for years to come, Va. Code §63.2-1202(H) does not give courts the authority to ignore contact during that six-month period based on a consideration of the quality or value of the contact. The Court of Appeals reversal of the circuit court’s finding on this issue was affirmed.

      (2) Consent Withheld Contrary to Best Interests

2014 --- Lester v. Lester, Va. Court of Appeals, Unpublished No. 2061-13-3
Trial court did not err in holding that Father withheld his consent to the child’s adoption by its grandparents contrary to the best interests of the child, where the grandparents had custody of the child since he was one year old, the Father had not provided for the child since his birth, and the Father was unable to assume custody of the child due to his incarceration. Father’s objection that his incarceration was “just cause” for why he had not visited his son was meritless where there was evidence that Father had not seen the child for more than six months prior to his incarceration, and, once he was incarcerated, made no efforts to contact the child.

2014---Hardy v. Poston, Va. Court of Appeals, Unpublished, No. 0869-14-3

The trial court did not err in granting the paternal grandmother’s petition for adoption over Father’s refusal to consent where the evidence clearly and convincingly indicated that, among other things, Father had not had custody of or any meaningful relationship with the children in several years, failed to exercise the liberal visitation granted to him by the juvenile court, and had an extensive criminal history including a conviction for murder and a recent conviction and incarceration for malicious wounding.

2012---Graham v. Owens, Va. Ct. of Appeals, Unpublished, No. 0899-12-1
The standard for granting an adoption over a birth parent’s objection is more than a finding that the adoption would promote the child’s best interests. The trial court must consider factors, including: the birth parents’ efforts to obtain or maintain legal and physical custody of the child; whether the birth parents are currently willing and able to assume full custody of the child; the birth parents’ ability to care for the child; the age of the child; the quality of the relationship between the birth parents and any other minor children; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child. The trial court did not err in granting a stepparent adoption despite the biological father’s objection thereto. The biological father was serving an active sentence of 33 years in prison for convictions of sodomy against another child from a previous relationship, and possession and production of child pornography. The child in question had been in the exclusive custody of the mother and living in the home of the mother and the adoptive father for over five years, and was thriving.

2011---Copeland v. Todd, 282 Va. 183
The meaning of “best interests of the child” is different in the context of adoptions than it is in the context of custody disputes between natural parents, and must be read in adoption matters in light of a biological parent’s due process rights in her relationship to the child. To grant a petition for adoption over a birth parent’s objection, there must be more than a mere finding that the adoption would promote the child’s best interests – as that finding alone would allow a court to effectively divest a natural parent of all rights and obligations with respect to the child simply by finding that placement in the adoptive home is more suitable to the child than placement with a birth parent. That more expansive analysis is done by consideration of the delineated factors of Va. Code §63.2-1205.

However, a specific finding that the continuation of the relationship with the birth parent would be “detrimental” to the child is no longer required. The General Assembly amended §63.2-1205 in 2006 to remove the language requiring a finding of “detriment.” Although the General Assembly retained the factors previously required to determine whether the continuation of the relationship with the birth parent would be detrimental to the child, they are now factors relevant to determining whether consent is being withheld contrary to the child’s best interests. Thus, the Court of Appeals erred when it reversed the circuit’s court’s order of adoption on grounds that, by not requiring the adoptive mother to prove “detriment,” the circuit court violated the natural mother’s due process rights. Court of Appeals reversed; circuit court affirmed.

1999---Peters v. Hagerman, Va. Ct. of Appeals, Unpublished, No. 2901-98-4
Trial court did not err in finding that the child’s birth father, who had been incarcerated on state and federal gun and drug charges since before the child’s birth, had withheld his consent to the adoption contrary to the child’s best interests. The birth father was serving a forty-seven year prison sentence, had no relationship with the child, and was in no position at the time of the hearing or in the immediate future to have custody of or to provide support for the child. Furthermore, although the adoptive parents had made no affirmative efforts to seek out the birth father or keep him informed of the child’s life, there was no evidence that they had intentionally thwarted or attempted to prevent the father’s relationship with the child. Instead, the adoptive parents had established a loving relationship with the child and had both the emotional and physical ability to provide the child with a good home.

Home study reports filed in adoption proceedings pursuant to Va. Code §63.2.1232 are not inadmissible hearsay, as they are required and authorized to be presented to the court by statute.

1987---Frye v. Spotte, 4 Va. App. 530
The trial court did not err in granting a stepparent adoption over the objection of the children’s natural father. The natural father not only failed to provide court ordered support and make contact with the children, but demonstrated recurring incidents of spousal and child abuse, including sexual abuse. He was shown to have a violent temper, and made no effort to contact or have a relationship with the children until after receiving notice of the proposed adoption. Moreover, when he deserted the family for another woman eight years prior to the adoption proceedings, he took all of the food from the family home and disconnected the utilities, intentionally leaving the family in necessitous circumstances and forcing the mother to apply for public assistance.

      (D) Putative Fathers

2015---Chollette v. Keeling, Va. Ct. of Appeals, Unpublished, No. 0018-15-4
A putative Father could not intervene in child’s adoption proceedings where notice of the existence of the adoption and his ability to register with the Putative Father Registry was properly mailed to his believed address, even though the mailing was returned. Mailing, not receipt, triggers a putative father’s deadline to register. In addition, the putative Father had actual notice of the adoption proceeding prior to the deadline. A man who claims to be the biological father of a child has standing to participate in that child’s adoption proceedings in only four statutorily defined scenarios. Because the putative Father fell into none of these categories, he could not intervene in the child’s adoption.

      § 3-2.   Custody

      (A)  Criteria

      (1)  In General

2012---Patron v. Furtado, Va. Ct. of Appeals, Unpublished, No. 0719-12-2
The trial court did not err in awarding primary physical custody to wife, despite evidence that (i) wife worked long hours; (ii) had at some point in the past attempted suicide; and (iii) husband was a stay-at-home father for the child. Further evidence revealed that husband had failed to maintain stable employment, had sold illegal drugs, and had exposed the child to his illegal activities.

2010--- Olson v. Conlon, Va. Ct. of Appeals, Unpublished, No. 0470-10-4
Upon consideration of the factors of Va. Code §20-124.3, if the court finds a history of family abuse as that term is defined in Va. Code §16.1-228 or sexual abuse, the court may disregard the factors contained in Va. Code §20-124.3(6) concerning the propensity of one parent to support the child’s relationship with the other parent.

2010---Chorbaji v. Simpson, Va. Ct. of Appeals, Unpublished, No. 2910-08-4 
Where evidence indicated husband’s lack of involvement in child’s life prior to the separation from wife, husband’s verbal and emotional abuse of wife and child, that husband had shaved the child’s head, had attempted to damage the child’s relationship with the child’s doctor, had given the child prescription medication which he did not need, and had ignored the trial court’s pendente lite orders by allowing his girlfriend to be present at visitation exchanges and during overnight visitation, the trial court did not err in awarding sole custody to wife and supervised visitation to husband until husband ceased living with his girlfriend and denigrating wife in front of child.

2009---Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 2810-08-4
Trial court did not err in awarding wife sole legal custody of the parties' children, based on evidence that husband repeatedly violated interim orders by disparaging wife before the children, relaying information regarding the pending divorce case to the children, encouraging the older children to sneak out of wife's house to go on vacation with husband, allowing the children to see husband and his paramour sharing a bed, and allowing the youngest child to sleep in the same bed with husband and his paramour while traveling.

2009--- Florio v. Clark, 277 Va. 566
Trial court abused its discretion in refusing to admit an updated home study of the father, which the court itself had ordered, as a sanction for an arguable failure to comply with the court’s deadline for filing the report.  Because the previous home studies were conducted almost two years prior to the trial date, the updated home study was the most recent evidence from an impartial source in the court’s possession concerning factors directly bearing on the best interests of the child, such as the father’s home situation and interactions with the child.

Trial court erred in excluding testimony by a licensed clinical social worker who had met with the child, the father, and the maternal aunt and uncle to conduct court-ordered counseling on a weekly basis for approximately two years.  Trial court initially ruled that the social worker could testify regarding observations, but not make a recommendation.  However, during trial, the court prevented the social worker from testifying to observations related to the “best interests” factors of Va. Code §20-124.3.

2008---Artis v. Jones, 52 Va. App. 356
Trial court erred by failing to explain how the factors contained in Va. Code §20-124.3 applied to determine how the best interests of the child would be served by the specific change in custody and visitation ordered by the court. “While communicating the basis of the [custody] decision does not rise to the level of providing comprehensive findings of fact and conclusions of law, it does mean that the trial court must provide more to the parties than boilerplate language or a perfunctory statement that the statutory factors have been considered.” (citing Lanzalotti v Lanzalotti, 41 Va. App. 500 (2003)). The trial court must provide a case-specific explanation of the fundamental, predominating reason or reasons for the decision.

2007---Polemeni v. Polemeni, Va. Ct. of Appeals, Unpublished, No. 1682-06-1
Evidence supported trial court’s award of primary physical custody of parties’ children to Husband. Wife made visitation difficult for Husband, seemed unable to discipline the children, made an injudicious connection with a boyfriend, failed to investigate the school system before moving in with boyfriend, listed boyfriend and not Husband as the emergency contact, and seemed “weary and detached.” In contrast, Husband would be the more vigorous parent and provide firmer discipline.

2007---A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial court did not err in granting joint custody of children where Father was a homosexual. The record provided evidence showing that Father is discreet in the presence of the children about his romantic relationship, that the relationship had not had an adverse impact on the children, and that Father is a good parent. Homosexuality by itself does not render a parent unfit. See Doe v. Doe, 222 Va. 736 (1981). Rather, a trial judge must examine “the sexual conduct of a parent to determine whether it has had any adverse impact on the child...” Piatt v. Piatt, 27 Va. App. 426 (1998). This standard applies to both heterosexual and homosexual conduct. Id. At 432 n.2.

2007---Riley v. Riley, Va. Ct. of Appeals, Unpublished, No. 2226-06-1
Trial court did not err in awarding joint physical and legal custody to Mother and Father where the court considered and discussed each of the factors set forth in Va. Code §20-124.3 as it related to the evidence, including the reasonable preferences of the children. The trial court felt that the parents complemented each other in that they had different strengths that would address the children’s many levels of need.

2006---Barrett v. Barrett, Va. Ct. of Appeals, Unpublished, No. 0902-06-3
Trial court considered the necessary statutory factors in determining that the best interests of the children would be served by awarding sole custody of parties’ six children to Mother and awarding Father limited visitation rights, the court communicated the underlying basis of its decision to the parties through a well-reasoned, seven-page opinion letter.  The trial court is not required to address each and every factor in Va. Code §20-124.3  in explaining the basis for its decision.

2006---Surles v. Mayer, 48 Va. App. 146 
Trial court did not err in determining that the best interests of the parties’ daughter would be served by continuing custody with Mother.  Daughter had resided with Mother since birth and if custody were changed she would be denied daily contact with her sibling.  Additionally, Father has some history of domestic violence.

2003---Ramsey v. Clements, Va. Ct. of Appeals, Unpublished, No. 2988-02-3
Trial court did not err in finding that the best interests of the child would be served by leaving custody with the father, despite finding that the child was “being raised primarily by the grandparents” and spending over half of the time with the grandparents.  Although the child’s time with the grandparents constituted a change in circumstances, evidence indicated that the time spent with the grandparents was for the child’s convenience during the school year, and that the child was thriving in the current situation.

1999---Brown v. Brown, 30 Va. App. 532
Trial court did not err in refusing to award wife sole or joint legal custody or to prohibit father from home-schooling children. The children were performing well in the home-schooling environment, and, despite initial resistance to mother’s involvement, father made efforts to keep her apprised of the children’s progress, involved her in their extra-curricular activities, and agreed that it would be beneficial for her to visit their classroom on occasion. The home-schooling curriculum had been approved by the local board of education. The children had been in the home-schooling program for almost two years, and evidence revealed that the home-schooling allowed each parent a larger amount of time with the children than more traditional educational options. Court held that mother failed to meet her burden to show material change in circumstances requiring a change in legal custody to safeguard the best interests of the children.

1998---Piatt v. Piatt, 27 Va. App. 426
Physical custody granted to Father.  Wife, a lesbian, had a less stable life.

1954--- Judd v. VanHorn, 195 Va. 988
Where custody of the children is granted to one party by a divorce decree, such grant does not forever foreclose or bar the other parent’s right to custody, but merely establishes the right of custody as between the two parents during their lives. When the custodial parent dies, custody automatically vests in the surviving parent if the surviving parent is not otherwise unfit.

                  (2)  Fault

1992---Ford v. Ford, 14 Va. App. 551
Trial court did not err in awarding joint custody despite the fact that the father had moved into the home of a woman with whom he had an adulterous relationship.  Evidence showed that the father and the woman went to great lengths to establish for the daughter a nonthreatening, platonic relationship, including staying in separate rooms when traveling with the child, and maintaining separate rooms in the woman’s house.  The mere fact of adultery, without more, is an insufficient basis upon which to find that a parent is an unfit custodian, (citing Brinkley v. Brinkley, 1 Va. App. 222 (1985)). The standard governing review on this issue is "the extent to which the child is exposed to an illicit relationship."

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