Adoption

Last Updated On: 2/2/2018 1:44:14 PM

Introduction

This article answers questions about adoption under West Virginia law. If you are not the birth parent and you want to get legal custody of a child, adoption is one way to do it. However, adoption is not the only way to get legal custody of a child. You may need to talk to a lawyer to make sure adoption is the best legal tool for your situation.

If you are a stepparent that wants to adopt the child of your spouse, read the article on Stepparent Adoption for more specific information about adoption in those situations.

What does adoption mean under West Virginia law?

Adoption is when someone other than the birth parents asks a Judge to give them all the legal rights and responsibilities of a parent. In West Virginia, you file for adoption in Circuit Court and the Circuit Court Judge decides on the adoption case.

Is there more than one kind of adoption in West Virginia?

There are two kinds of adoptions in West Virginia, a step-parent adoption and a third-party adoption. A stepparent adoption is when the husband or wife of a birth parent asks to adopt that birth parent’s child. For more information read the article on Stepparent Adoption.

What is a third-party adoption?

A third-party adoption is when any person other than a stepparent asks to adopt a child. Third-parties who ask to adopt a child can be other family members such as a grandparent, an aunt or uncle, or a sister or a brother. However, individuals or couples who are not part of a child’s family can ask to adopt a child in a third-party adoption.

What are the differences between adoption and guardianship?

  • How long it lasts: A guardianship is when someone other than the birth parent asks a Judge to give them legal custody of a child for a set amount of time. A guardianship usually ends when the child turns 18, if the Judge did not set it up to end sooner. If you want to be a child’s legal guardian, you can ask for the guardianship to end at a set date, or when a certain event happens. For example: when the child turns 10, when the child starts school, or when the child’s mother finishes drug treatment. If you adopt a child, on the other hand, the Judge gives you permanent legal rights over the child.
  • Where you file: In West Virginia, you can ask for guardianship in Family Court or Circuit Court. You can only ask to adopt a child in Circuit Court.
  • When should you file: If you want to adopt a child who is staying with you because the birth parents are not caring for the child, it is usually best to wait until the child lives with you for six months. If you want custody of a child who does not live with you because you believe the child is not safe, you can file for a guardianship to get custody, and decide later if you want to adopt.

How do I begin an adoption?

You file a “petition” for adoption with the Circuit Clerk for the county you live in. You need to send a copy of your petition to the child’s birth mother and anyone who claims to be the father (unless a Judge cut off both birth parents’ rights in an abuse and neglect case). You also need to copy any other person who claims legal or physical custody of the child. You need to be able to say that neither birth parent can care for the child because one of the following is true for each birth parent:

1. The birth parent agrees to the adoption, OR

2. The birth parent freely gives up rights to the child, OR

3. A Circuit Court Judge took away the birth parent’s rights, OR

4. The birth parent “abandoned” the child, OR

5. The birth parent is dead.

After you file the adoption paperwork, the Circuit Judge should hold a hearing within 45 days.

What is abandonment?

Abandonment is when a birth parent acts, for six months or longer, as if they will not care for the child. West Virginia law says that:

A parent has legally abandoned a child over six months old, if that parent knows where that child lives, and, for six months or longer:

1. Does not support the child financially and

2. Does not visit or stay in touch with the child.  

A father has legally abandoned a baby under six months old if the father says he is not the father and he does not support the child financially or stay in touch with the child.

If a parent “abandons” the child with no gaps in time for six months or from the child’s birth if the child is under six months old, then that child is free for adoption.

 

What if it is not the birth parent’s fault that they cannot support the child or stay in touch with the child?

If a birth parent can prove it is not their fault that they cannot support a child, then West Virginia law does not hold it against them. One reason would be if the parent is disabled and cannot work. Likewise, if a birth parent can prove it is not their fault that they cannot stay in touch with or visit the child, then West Virginia law does not hold it against them. Some reasons a parent cannot stay in touch could be if they are in the military or in jail, if they are seriously ill, or if a Family Court told them in an order to stay away from the child.

What is consent?

When birth parents freely agree to an adoption, they are giving “consent.” For an adoption to go forward, West Virginia law requires that both the birth mother and father consent to the adoption unless a Judge cut off their rights or they abandoned the child. If a Judge cut off the rights of one parent or one parent abandoned the child, then only the other parent needs to consent.  

Does consent to an adoption need to be in writing?

For consent to be legal, you must give it in writing. You must sign and date the consent in front of a notary public. The following things must be listed on a birth parent consent:  

  • The birth parent’s current address.
  • The name, date of birth, and current address of the child.
  • That the birth parent allows the adoptive parent to make decisions about the child’s medical treatment.
  • That the adoption cuts off the birth parent’s rights forever;
  • Whether the child is from a Native American Indian tribe;
  • Whether the child owns any property.

The Circuit Court Judge may agree to an adoption without written consent if the birth parent comes in person to the adoption hearing and gives consent in front of the Judge.

Can I pay someone to get them to consent to an adoption?

In general, a person or adoption agency cannot give a birth parent money, property, services, or anything valuable in exchange for consent. There are a few exceptions such as adopting parents who agree to help a birth mother with medical expenses for the birth. If you are thinking about agreeing to this kind of support for a birth parent, you should talk to a lawyer if possible. You should also make sure the agreement is specific and in writing.  

What is the difference between consent and relinquishment?

Relinquishment is a kind of consent that happens when a child’s birth parent or guardian gives up their rights so the child can go into an adoption agency’s legal custody. The things that must be listed in a relinquishment are the same as for a consent, but instead of naming adoptive parents, a relinquishment names the adoption agency.

If I am the birth parent, how do I go about giving my consent for adoption?

If you are the birth parent, you can give consent for adoption starting any time 72 hours or 3 days after the child is born. As it says above, you must give your consent to an adoption in writing, with a notary public to sign as a witness.  

If you give your consent to an adoption, you are legally giving up your rights as a parent. Therefore, West Virginia law says you must consent of your own free will. If you are thinking about giving up your child for adoption, talk to an attorney to better understand your rights.

What if one parent does not consent?

If one parent does not consent, the adoption can sometimes still go ahead. The Circuit Court Judge would need to decide that the parent who will not consent abused or abandoned the child and should have their rights cut off. If the Judge finds that the objecting parent is a fit parent who did not abandon the child, the adoption will not be granted.  

What if the birth father is unknown?

If the birth mother is not sure who the birth father is, she will need to file a document called an “affidavit” with the court. The affidavit should state:

  • Whether the birth mother was married or living with a man at the time she got pregnant;
  • Whether any man gave the birth mother money to support the child or for pregnancy costs;
  • Whether the birth mother listed a father on the birth certificate or told anyone at the hospital where she gave birth the name of a father;
  • Whether the birth mother listed a father when she applied for public assistance.
  • Whether the birth mother told any man that he may be the birth father.
  • Whether any man, anywhere, has claimed to be the father;

The affidavit should also state:

  • The last known address of any man listed above;
  • That the mother understands that if she does not name a birth father, it can delay an adoption; and
  • That the birth mother understands that the fathers identify will be used only for adoption.

If the birth mother states in an affidavit that she is unsure who the father is, the Judge will review the information and decide if they can identify the likely father. If the Judge can identify a likely father, the Judge will notify the father of the adoption hearings. If the Judge cannot identify a likely father, then the Judge may publish notice of the final adoption hearing in a local newspaper.

Does a child have to agree to an adoption?

Children under the age of 12 do not have to agree to an adoption. If a child is under the age of 12, the Court can order the adoption based on the child’s best interests, even if the child does not want it. If a child who is being adopted is over the age of 12, he or she usually needs to agree to the adoption in front of the Judge. The Judge can ignore the wishes of a child 12 or older if there are safety issues or other exceptions.  

 

What if I want to adopt someone over the age of 18?

You can adopt another person over the age of 18 if the person being adopted (the “adoptee”) agrees to the adoption. The adoptee’s agreement is the only consent needed if the adoptee is over 18. You do not have to get consent from the adoptee’s birth parent(s) if the adoptee is over 18.

Can I ask for an “open” adoption?

An open adoption is an agreement that says that the birth parents can stay in touch with the child after the final adoption. In West Virginia, all adoptions are closed adoptions. Even if the adopting parents or the birth parents ask for an open adoption, the state of West Virginia will not grant one. The adoptive parents and birth parents can agree to an open adoption, but if a dispute comes up, the adoptive parents have final say. A Circuit Judge cannot enforce an open adoption agreement.  

In West Virginia, birth parents and adult adoptees can sign up to find each other. If both the birth parent and birth child “register” to find each other, the state will notify both sides. This is called the Voluntary Adoption Registry and you can learn about it on page 87-88 of the Adoption Policy handbook on the DHHR website.  

Do I have to be screened to adopt a child?

The Judge will check if you have enough income and resources to support the child. The Judge will also ask if you have a criminal history. The Judge may also ask DHHR or an agency to do a “home study” of where you live. Home studies help the Judge decide if your home is safe for the child. Once social workers from DHHR or another agency visit, they will report to the Judge. Sometimes the Judge does not require a home study if the children have been staying with the adoptive parents for some time.  

What are the legal effects of an adoption?

When the Judge enters the final adoption order, the order cuts off the birth parents legal rights and duties. The adoptive parents take on all the legal and financial rights and duties of any parent.

 

Can I adopt my foster child?

You can adopt your foster child if a Circuit Judge cuts off the birth parents’ rights. Before you try to adopt your foster child, you should check with DHHR to see if adoption is the best option. Adoption will change any benefits you currently get as a foster parent. DHHR may give you up to $1,000 to hire a lawyer to do the adoption. Please see DHHR’s website for more information.  

 

Can I receive any tax benefits for adopting a child?

If you adopt a child, you can count that child like a birth child as a tax dependent. You can also get child tax credits from the state and the federal government.

West Virginia will give you a one-time tax credit for a “nonfamily” adoption. If you adopt a child who is not related to you by blood or marriage, you could qualify for the credit. The one-time credit is for up $4,000 and you can take the payout over a 3-year period. You will need to fill out Form NFA-1 and file it with your state income tax.

 

On federal tax returns, you can file for one-time tax credits for some adoption costs. You can use the credit to cover what you owe in taxes in the year of the adoption. If you have any credit left over, you can use it for up to five years. For more information see the IRS website.  

If you adopt a special needs child, you can apply for state and federal money to help with the child’s medical needs. You should talk with a lawyer or tax professional to learn more.

Are there other supports that I can gain or lose if I adopt a child?

If you get a TANF “child only” check from DHHR because you care for a child that is not your own, you will lose that check if you adopt the child.

However, if you get a Social Security Disability check or Veterans’ Benefits, your adopted child will get the same benefits your same age birth child would get.

Can I represent myself in an adoption hearing?

Whether you are a birth parent or someone who wants to adopt a child, you should try to talk about adoption with a lawyer to understand your choices and protect your rights.  

The Supreme Court of Appeals of West Virginia does not have forms you can fill out for adoption. You will probably need a lawyer to at least help you write the forms or give you the information you need for the forms you file.  You can apply for help from Legal Aid or contact other legal resources.

 
This is general legal information. For guidance about your situation, talk to a lawyer.