An Overview of Adoption Law
In West Virginia
Effect of the Adoption Order: Upon the entry of the adoption order, any person previously entitled to parental rights (including their kindred) (except the spouse of the petitioner in a stepparent adoption), is divested of all legal rights, including the right of inheritance from or through the adopted child and all obligations in respect to the child, and the adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person. The adopted child shall now be the legitimate issue of the adoptive parent(s) and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of the adopting parent(s). WV CODE § 48-22-703.
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When is the Adoption Order Final? An order may not be vacated on any grounds if the challenge is filed more than 6 months after the date the order is final.
Where Notice Was Proper: An order may not be vacated on any ground if the challenging party waived notice, or was properly served with notice and failed to respond, or if he failed to file an answer or file a claim of paternity within the time allowed.
Where Notice Was Not Proper: Where a challenge is brought within that 6 month time period and the individual alleges that they did not receive proper notice of the proceeding, the court shall deny the challenge unless the individual proves by clear and convincing evidence that the order is not in the best interests of the child.
Failure to Comply with Visitation: Further, an order may not be set aside or vacated by an person who alleges there is a failure to comply with a visitation agreement. The Court may enforce the visitation agreement, however.
WV CODE § 48-22-704.
Legal Risk Adoption: Some examples of instances wherein adoption may be at risk include:
- The rights of the birth parents have not been terminated or severed, prior to placement of the child in the home of the prospective adoptive parents. The Court may not eventually terminate the parental rights, and therefore, the adoption may not take place. Our Supreme Court of Appeals has held, however, that where the child has spent a substantial period of time in the home of foster parents, extraordinary circumstances exist which demand that the best interests of the child be given primary importance. West Virginia Dept. of Human Services v. La Rea Ann C.L., 175 W.Va. 330, 332 S.E.2d 632 (1985) (parent ’ s right to revoke relinquishment was not absolute).
- The petitioner files the adoption petition before the birth parent or other person with parental rights had opportunity to file an appeal from the court order which terminated their parental rights. If the termination of parental rights resulted from abuse and neglect proceedings, the individual has 60 days to appeal with the right to obtain an extension for another 60 days. WV Rules of Procedure for Child Abuse and Neglect, R. 51.
- The consent/relinquishment does not meet the requirements of the Adoption Code.
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