An Overview of Adoption Law
In West Virginia
The Unknown Birth Father:
Affidavit: Where the birth mother states that she does not know the identity of the father of her child, West Virginia law requires her to sign an affidavit. The affidavit must satisfy very specific requirements, set forth in WV CODE § 48-22-502(b). If the birth mother is deceased or her identity or whereabouts are unknown, no affidavit is required.
Advice to Birth Mother: The birth mother must be advised:
that the failure to identify or the misidentification of the birth father can result in delays and disruptions in the processing of the adoption;
that her statement concerning the identity of the father will be used only for the limited purposes of adoption and that once the adoption is complete, such identity will be sealed; and
of the remedies available to her for protection against domestic violence under WV law (WV CODE § 48-27-101).
Additional Evidence May Be Considered by Court: Where an unknown father’s affidavit is executed, the court will inspect the affidavit, consider any additional evidence that it determines should be produced, and determine whether the father may be identified. The consideration of additional evidence must be accomplished as soon as practicable after the filing of the petition, but no later than 60 days before the final hearing on the adoption petition.
If the Court identifies a father, then notice of the adoption petition must be given to the father in accordance with WV CODE § 48-22-602.
If after consideration of the evidence, the Court determines that proper service cannot be made because the identity of the father is unknown, the court shall order publication of the notice only if, on the basis of all information available, the court determines that publication is likely to lead to the receipt of notice by the father.
Presumed Abandonment: Abandonment is presumed where unknown father fails to “make reasonable efforts to discover that a pregnancy and birth have occurred as a result of his sexual intercourse with the birth mother” prior to entry of final adoption order. WV CODE §48-22-306.
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