During any divorce, child custody can become a thorny issue. Although the courts will decide in favor of the child’s best interests, there are times when the separating spouses lose custody of their child. Thus, non-parent caregivers, whether they are grandparents or relatives, can apply for custody of the child instead. That said the Virginia Adoption Statute maintains that parents retain their parental rights. Even if the non-parent caregivers gain custody over a child, they may lose custody, and the child returns to the parents. How does this work?
Non-Parent Caregivers and the Adoption Statute
Non-parent caregivers, once given child custody, are known as legal custodians. They are responsible for taking care of the child in the absence of the birth parents. However, the rights of these legal custodians are often overshadowed by rights held by the birth parents. While a legal custodian is charged with the care of the child, they cannot adopt the child outright without parental consent. This situation is how the Virginia Adoption Statute ties into the proceedings. Adoption is tightly controlled and only goes through if both the birth mother and the designated father agree to it. The adoption agency also has a voice during the decision. In the language of the statute, legal custodians are never mentioned when it comes to consent. Similarly, they are not mentioned as parties who must be notified of any adoption decision.
Questions Over Parental Consent and Proper Notice
If the statute does not directly mention legal custodians, it signals insufficient protection of their rights regarding child custody and adoption. Parental consent and proper notice are two elements of the adoption process from which legal custodians are often excluded. Thus, a major question arises: when an adoption consent hearing is held, should the legal custodians be invited to attend? How would such a hearing proceed? Perhaps the hearing would focus on the best interests of the child. The following factors determine the child’s best interests:
- If the birth parents are willing and able to regain custody
- How well the birth parents can take care of the child
- How old the child is
- How a change in circumstances would affect the child’s well-being
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